Koster v. Boudreaux

• Decision Date: 23 December 1982
• Citation: Koster v. Boudreaux, 11 Ohio App.3d 1, 463 N.E.2d 39 (Ohio App. 1982)
• Parties: , 11 O.B.R. 12 KOSTER, Appellant, v. BOUDREAUX, Appellee, et al.
• Court: Ohio Court of Appeals

Page 1

11 Ohio App.3d 1

463 N.E.2d 39, 11 O.B.R. 12

KOSTER, Appellant, v.BOUDREAUX, Appellee, et al.

Court of Appeals of Ohio, Sixth District, Lucas County.

Dec. 23, 1982.

Syllabus by the Court

1.Prior to the passage of R.C. 5302.17, an estate by the entireties did not exist in Ohio.

2.The right of married women to own property in Ohio does not preclude the existence of an estate by the entireties.

3.Notwithstanding statutory language which is technically inconsistent with the entireties estate as recognized at common law, the legislature, by enacting R.C. 5302.17, intended to authorize the creation of the common-law estate by the entireties.

4.A judgment creditor of an individual spouse is precluded from enforcing that judgment by a foreclosure action against real property which the debtor spouse holds with his/her spouse in an estate by the entireties, where the debt arises and the foreclosure action is filed subsequent to the date of the marriage and the granting of the entireties estate.

Jeffrey Goldstein and Lorin Zaner, Toledo, for appellant.

Richard Farrar, Toledo, for appellee.

DOUGLAS, Judge.

This case comes before the court on appeal from judgment entered by the Lucas County Court of Common Pleas in which appellant's complaint was dismissed with prejudice after that court denied appellant's motion for summary judgment.

The record before us reveals that on February 13, 1976, Robert A. Boudreaux and Marilyn A. Boudreaux, as husband and wife, purchased the following described real property: "Lot number twenty-five (25) in White Cliffs Plat I, a Subdivision in the City of Toledo, Lucas County, Ohio."Mr. and Mrs. Boudreaux took title to the above-described real property by an "ESTATE BY THE ENTIRETIES WITH SURVIVORSHIP DEED" which was duly recorded in the Lucas County Recorder's Office.

On April 13, 1978, appellant, Ray Koster, obtained a default judgment against Mrs. Boudreaux, the appellee herein, in the amount of $12,500.Pursuant to said judgment, appellant caused a lien to be placed on record against real estate owned by appellee and her husband.Appellant, in an effort to enforce said judgment lien, filed a complaint in the Lucas County Court of Common Pleas on January 19, 1982, to foreclose on the above-described real property.Named as defendants in said complaint were Robert Boudreaux, Marilyn Boudreaux, and First Federal Savings and Loan Association("First Federal"), mortgagee of said property.

First Federal filed its answer on January 28, 1982, and on April 7, 1982, Robert and Marilyn Boudreaux filed their answer.Also, on this date, appelleeMarilyn Boudreaux filed a counterclaim.On May 11, 1982, appellant filed a motion to strike Robert Boudreaux from the complaint and to dismiss him from the cause of action.The trial court granted appellant's motion on May 12, 1982, and accordingly, Robert Boudreaux was dismissed from the foreclosure action.

The appellant then moved for summary judgment as to appelleeMarilyn Boudreaux on June 1, 1982, and on June 11, 1982, appellee filed her opposition to appellant's motion for summary judgment.On June 17, 1982, the trial court denied appellant's motion for summary judgment and dismissed appellant's complaint with prejudice, stating:

" * * * Plaintiff[appellant] seeks in his complaint the relief of foreclosure of his judgment lien against certain real estate belonging to the defendant[appellee]Marilyn Boudreaux and her husbank [sic ]Robert Boudreaux.Such relief must be denied the plaintiff[appellant] because the plaintiff[appellant] has obtained a judgemnt [sic ] only against the defendant[appellee]Marilyn Boudreaux and the lien sought to be foreclosed in this cause is filed against real estate held by Marilyn and Robert Boudreaux as an estate by the entireties.Since the judgment is not against both Maril8n [sic ] and Robert Boudreauxthe plaintiff's [appellant's] lien cannot be foreclosed.* * * "

Appellant filed his notice of appeal on July 8, 1982.However, this court dismissed that appeal on August 5, 1982, because fewer than all the claims of the parties had been adjudicated in the court below, as the trial court had not ruled on appellee's counterclaim.Further, absent the adjudication of all parties' claims, the trial court had not made an express determination that there was no just cause for delay.Civ.R. 54(B).The trial court amended its order dismissing appellant's complaint on August 10, 1982, to include an express determination that there was "no just reason for delay."It is from that amended judgment entry which appellant appeals, stating as his sole assignment of error:

"I.The court of common pleas erred by granting defendant-appellee's motion for summary judgment."

The question presented us is indeed a narrow one, and our holding is based only upon the factual issue which this case presents.Thus, we must decide whether the trial court erred in holding that, as a matter of law, a judgment creditor of a married individual is precluded from enforcing that judgment by an action in foreclosure against real property which the individual debtor holds with his/her spouse in an estate by the entireties, where the judgment evidencing the debt of an individual spouse and the resulting foreclosure action to enforce that debt both occur subsequent to the date of the marriage and to the date on which the spouses were granted an estate by the entireties.

In answering this question, we are faced with the necessary task of interpreting R.C. 5302.17, which provides in relevant part:

"A deed conveying any interest in real property to a husband and wife, and in substance following the form set forth in this section, when duly executed in accordance with Chapter 5301. of the Revised Code, creates an estate by the entireties in the grantees, and upon the death of either, conveys such interest to the survivor, his or her separate heirs and assigns."

The statute also sets forth a sample deed, which provides that real property is granted to the spouses as " * * * husband and wife, for their joint lives, remainder to the survivor of them * * *."¹

Appellant notes that the legislature, in enacting R.C. 5302.17, did not indicate what effect, if any, the estate by the entireties would have on the rights of an individual spouse's creditors.Our task is further complicated by the fact that there is no official comment by the legislature from which we might have gained insight as to the intent of the legislature in enacting this statute.SeeIn re Thomas(Bkrtcy.N.D.Ohio1981), 14 B.R. 423, 425.Appellee has directed this court to the recently decided case of Donvito v. Criswell(1982), 1 Ohio App.3d 53, 439 N.E.2d 467, and our independent research has indicated that this is the only reported Ohio decision which specifically addresses the question before us.Because of the paucity of case law which exists on this question, we believe that the issue before the court merits discussion.²

An estate by the entireties is not a novel estate, as at common law it was the preferred method for a husband and wife to hold title to real property.Yzenbaard, Ohio's Beleaguered Entirety Statute(1980), 49 U.Cin.L.Rev. 99, 100.It is a form of concurrent ownership of property that is peculiar to married couples.Magee, Tenacy by the Entirety: Ohio's New Estate(1974), 2 N.Ky.St.L. Forum 69, 70-71.A married couple which holds title to property by the entireties is seized of the property "per tout et non per my"(seized of a whole but not of a share).4 Thompson on Real Property (1979) 59, Separate and Concurrent Ownership, Section 1784."Under modern entireties theory the husband and wife are viewed as but one person and take the whole estate as one person through their legal unity of marriage."Magee,supra, at 71.Thus, neither spouse has a divisible part or interest in the property, but rather each has the whole estate.To create an estate by the entireties at common law, it was necessary to have present the four unities of time, title, interest and possession together with the fifth unity of person between husband and wife.Magee, supra, at 71.Thus, for an estate by the entireties to exist at common law the tenants must be husband and wife and have an equal interest which was acquired by the same conveyance, commenced at the same time and held by the same undivided possession.SeeKnibb v. Security Ins. Co.(1979), 121 R.I. 406, 410, 399 A.2d 1214, 1216.

Since at common law the distinguishing feature of an estate by the entireties was spousal unity, such an estate could only exist during coverture.Upon the death of one of the spouses, the entireties estate necessarily was dissolved and the whole estate, as held in its entirety by the husband and wife, continued in the surviving spouse.However, the whole estate continued in the surviving spouse, not because the surviving spouse was vested with any new interest in the property upon the death of the other, but rather because each spouse originally took an undivided interest in the whole.Magee, supra, at 73.

Estates by the entireties were not recognized in Ohio prior to 1972(the effective date of R.C. 5302.17), as the Supreme Court, in Sergeant v. Steinberger(1826), 2 Ohio 305, held that any form of survivorship, including an estate by the entireties between husband and wife, was against public policy as it was " * * * not founded in principles of natural justice * * * " and that it offended the "understandings, habits, and feelings of the people."Sergeant, supra, at 306.This judicial philosophy, not favoring the right of survivorship in any form, prevailed until the Supreme Court in In re Estate of Hutchison(1929), 120 Ohio St. 542, 166 N.E. 687, held that although joint tenancy with its right of survivorship did not exist in Ohio as it did at common law, parties could nevertheless contract for joint ownership with a survivorship right.Thus, upon the death of one of...