Krokyn v. Krokyn

• Decision Date: 06 June 1979
• Citation: 390 N.E.2d 733,378 Mass. 206
• Parties: Roberta KROKYN v. William KROKYN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 733

390 N.E.2d 733

378 Mass. 206

Roberta KROKYN v. William KROKYN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 1979.

Decided June 6, 1979.

Herbert A. Horgan, Jr., Newton, for defendant.

Leonard L. Lewin, Boston (Valerie Y. Belsky, Boston, with him), for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

The parties in this case were divorced by a decree which became final on June 30, 1970. An agreement dated December 23, 1969, was incorporated therein. The agreement required the husband William Krokyn to pay the lump sum of $1992 to the wife Roberta. It further required William to pay Roberta the sum of $75 a week for her support in biweekly installments until the happening of certain specified events. The agreement contained other provisions not relevant here. ¹

William made the $75 weekly payments for several years, and he paid $500 of the lump sum. He ceased making payments in September of 1975. Thereafter, on April 20, 1976, Roberta filed a contempt petition. Hearings thereon were held on January 18, 1977, and on January 25, 1977. The probate judge found William in arrears in the amount of $5949.50. He concluded that William "at all times possessed, and still possesses, the ability to make the support payments called for in the Agreement incorporated into the divorce decree dated December 29, 1969, ² being the owner of a one half interest in real estate having a present equity of at least $70,000.00 . . .." The judge found William in civil contempt and sentenced him to ten days' imprisonment. ³ William appealed, and we ordered the case transferred to this court on our own motion. See G.L. c. 211A, § 10(A). We hold that there was no error.

William does not now controvert the existence or the amount of his arrearages under the support provisions of the agreement and decree. He argued below that he lacked the ability to comply with his support obligations, and he now argues that the judge's finding of ability was clearly erroneous. ⁴ Proven inability to pay the arrearages found by the judge would, of course, have precluded incarceration. Salvesen v. Salvesen, 370 Mass. 608, 611, 351 N.E.2d 499 (1976). Milano v. Hingham Sportswear Co., 366 Mass. 376, 378, 318 N.E.2d 827 (1974)(dictum). Sodones v. Sodones, 366 Mass. 121, 130-131, 314 N.E.2d 906 (1974). See generally Note, The Rising Divorce Rate: Familiarity Breeds Contempt, 11 Suffolk U.L.Rev. 1059, 1072-1077 (1977). Because the evidence in this case is reported, "the appeal brings before us all questions of law, fact, and discretion." Cohen v. Murphy, 368 Mass. 144, 147, 330 N.E.2d 473, 475 (1975). Cf. Sodones v. Sodones, supra 366 Mass. at 125-127, 314 N.E.2d 906 (limited review when evidence not reported). In these circumstances our review is not limited to the judge's stated basis for his decision, viz., whether William's ownership of the one-half interest in a house would alone support the judgment. See Ezekiel v. Jones Motor Co., --- Mass. ---, --- ^A, 372 N.E.2d 1281 (1978); E. Whitehead, Inc. v. Gallo, 357 Mass. 215, 219, 258 N.E.2d 25 (1970); Eastern Inv. & Dev. Corp. v. Franks, 339 Mass. 280, 288, 158 N.E.2d 881 (1959); Ratte v. Forand, 299 Mass. 185, 187, 12 N.E.2d 102 (1938). We therefore examine the entire evidence bearing on William's ability to pay.

The judge heard testimony from William and from William's present wife, Shirley Krokyn, tending to show the following. William married Shirley in 1971. He is an architect employed by a corporation of which he is president and the only stockholder. His income, derived primarily from "management fees" paid by the corporation, was about $13,000 in 1973, $18,000 in 1974, and $17,000 in 1975. He received no income in 1976. The corporation had, however, been earning about $2,300 a month on account of William's services until shortly before the hearing and had an expectation of earning about $1,300 a month at some time in the future. The corporation had recently been operating at a loss, relying on loans made by Shirley and various banks in order to pay its creditors.

Shirley is a district manager for Avon Products, ⁵ and she is also a real estate developer. Together with William, she participated in several rehabilitation projects that yielded modest net profits and, in one case, a net loss. She is the treasurer of William's corporation but draws no salary therefor. She supplied the funds used by William to meet support obligations in the several months preceding the hearing.

Between them William and Shirley own two inoperative automobiles and use a car supplied by Avon for transportation. They own a house as tenants by the entirety. This house had initially cost $58,000 and was initially encumbered by a $45,000 mortgage. Shirley supplied the additional funds needed to purchase it. About eight months before the hearing, William and Shirley had improved the house at a cost of about $80,000. William did most of the work himself, and Shirley supplied the money needed for materials and outside labor. The house was worth between $140,000 and $200,000 at the time of the hearing and was encumbered by a $70,000 mortgage. Approximately $25,000 of the proceeds of the new mortgage loan had been used to pay William's business debts.

In summary, the testimony showed that William and Shirley had customarily lived in relatively affluent circumstances but that William had few financial resources beyond his somewhat conjectural prospects of future employment as an architect. The only significant asset available to William "at the time the order was entered" (Salvesen v. Salvesen, supra ) was the house then occupied by William and Shirley. There was evidence that the equity in this house was between $70,000 and $130,000 and that William and Shirley held title as tenants by the entirety. There was also evidence that Shirley had supplied most of the money used to purchase and remodel the house, while William had contributed labor and expertise. The question for decision on this appeal is, therefore, whether William's interest in the house was sufficient to warrant a finding that he had the present ability to pay the arrearages in his support payments to Roberta at the time he was found in contempt. We hold that it was sufficient.

Notwithstanding the misgivings expressed by the judge, ⁶ we think it clear that capital assets may be considered in addition to income in evaluating the ability of a contemnor to purge his contempt. E. g., Firestone v. Firestone, 263 So.2d 223, 226 (Fla.1972); Kay v. Kay, 37 N.Y.2d 632, 636, 376 N.Y.S.2d 443, 339 N.E.2d 143 (1975). Difficulty arises in this case, however, from the unique character and incidents of a tenancy by the entirety. "The nature of a tenancy by the entirety is thoroughly established by our decisions. It is founded on the common-law doctrine of the unity of husband and wife as constituting in law but one person. A conveyance to a husband and wife as tenants by the entirety creates one indivisible estate in them both and in the survivor, which neither can destroy by any separate act. Both husband and wife are seised of such an estate Per tout et non per my as one person, and not as joint tenants or tenants in common. Alienation by either the husband or the wife will not defeat the right of the survivor to the entire estate on the death of the other. There can be no severance of such estate by the act of either alone without the assent of the other, and no partition during their joint lives, and the survivor becomes seised as sole owner of the whole estate regardless of anything the other may have done." Bernatavicius v. Bernatavicius 259 Mass. 486, 487, 156 N.E. 685, 686 (1927), and cases cited.

Despite the equality of interest shared by husband and wife in a tenancy by the entirety, our law traditionally accords the husband the exclusive right to possession and income during the joint lives. E. g., Voigt v. Voigt, 252 Mass. 582, 583, 147 N.E. 887 (1925). The husband may sell this interest, subject always to the wife's expectancy of full title should she outlive the husband (e. g., Phelps v. Simons, 159 Mass. 415, 418, 34 N.E. 657 (1893)), and his sole creditors may levy on that interest to satisfy his debts. E. g., Raptes v. Pappas, 259 Mass. 37, 38, 155 N.E. 787 (1927). In contrast, the wife's mere expectancy of title is neither alienable nor subject to execution by her sole creditors. Licker v. Gluskin, 265 Mass. 403, 407, 164 N.E. 613 (1929).

Although William's ability to sell his interest in the house has presumptive value, there was no evidence from which the judge could determine the value of William's alienable interest. The judgment must, therefore, stand or fall with the proposition that shared ownership of valuable equity demonstrates ability to pay even though Shirley's cooperation would be required in order for William to liquidate his holding. Although authority on this question is sparse, we think the better rule supports the result reached below.

The Florida District Court of Appeal has considered the present issue in a nearly identical factual context. In Howard v. Howard, 118 So.2d 90 (Fla.App.), cert. denied, 122 So.2d 409 (Fla.1960), a divorced wife petitioned for modification of a periodic alimony award. The husband had remarried and, together with his new wife, accumulated valuable assets held in tenancy by the entirety. The lower court denied the petition for modification on the ground that the husband's interest in those assets could not be reached by his sole creditors. Id. at 93. The appellate court reversed, explaining that "(t)he court is not warranted in assuming that any (modification) order entered in this cause will not be promptly complied with by defendant from such resources as are available to him. It well may be that in order to pay plaintiff such increase in alimony as the chancellor may find to be fair and just, defendant may have to...