Martos v. Martos
| Decision Date | 03 November 1954 |
| Citation | 206 Misc. 860 |
| Parties | Johanna Martos, Plaintiff,<BR>v.<BR>Joseph Martos, Defendant. |
| Court | New York District Court |
George N. Berman for plaintiff.
Joseph Martos, defendant in person.
Plaintiff sues her husband for half the gross rentals of property standing in the name of both of them as tenants by the entirety.
From the date that the premises were first rented (June 1, 1952) to the date of the commencement of this suit the sum of $1,600 was collected and retained by the husband. Since then and up to the date of this hearing (Sept. 20, 1954) an additional sum of $1,200 has been collected and retained by him.
In the interest of avoiding multiplicity of suits and in keeping with the spirit of permissive modern practice, plaintiff has been allowed by this court to amend her pleadings so as to increase her claim to $1,400, representing one half of the gross rentals collected to date.
The case was tried once before another Trial Judge resulting in a dismissal of the complaint. On appeal to the Appellate Term of the Supreme Court, that decision was reversed and a new trial ordered "confined to the ascertainment of deductible expenses for the purpose of granting plaintiff judgment in the amount of one-half the net income" (Martos v. Martos, Appellate Term, 1st Dept., June 17, 1954, HAMMER, HOFSTADTER, and EDER, JJ.).
By this ruling the appellate court has clearly distinguished between a situation involving the proceeds of a sale of real property held by the entirety and an action for the recovery of income from such property brought by a spouse during the existence of the marriage. I think, properly so.
The law is settled that upon a sale or other disposition of a parcel of property, a wife who is a tenant by the entirety is entitled to half of the proceeds regardless of her contribution or lack of contribution toward the original purchase payment, subsequent mortgage and interest payments and improvements made to the "marital dwelling house" during the existence of the marriage. (Hosford v. Hosford, 273 App. Div. 659, and cases therein cited.)
Equally well settled is the principle that where the marriage is severed by a divorce decree, the parties become tenants in common and such expenditures are treated as they normally would be in a tenancy in common, from the date of the dissolution of the marriage. (Hosford v. Hosford, supra, and cases therein cited.)
From all I can deduce, plaintiff's position on the original trial and on appeal was, that she was entitled to a half share of the gross rentals, all disbursements made by her husband in connection with the property being presumed a gift to her.
On this retrial plaintiff's position is slightly changed. It is now her contention, First — that deductions can only be made for the calendar period of the rent collections, and Secondly — that mortgage amortizations and interest are not expenses and may not be deducted in computing net income here.
On all "battle fronts" she holds fast to the fact that her marriage is still in existence and relies mainly on the doctrine of the Hosford case (supra), particularly on the following language appearing on page 661 of that authority:
By the plaintiff's own testimony she left the marital household at the end of March, 1950. One thing is certain — whatever was expended by the husband defendant in connection with the subject property prior to April 1, 1950, regardless of the nature and purpose of the expenditure is in law "presumed a gift upon the husband's part based upon mutual love and affection." (Hosford v. Hosford, supra, and cases therein cited.)
Under the circumstances in this case, what are the presumptions in favor of plaintiff wife and what expenditures if any must be credited to the husband before a proper figure of net income may be fixed for the wife? These are the questions this court is called upon to answer.
The history of this marriage discloses that the premises in question ceased to be a "marital dwelling house" at the end of March, 1950. A separation suit (Martos v. Martos, N. Y. L. J., Jan. 25, 1951, p. 318, col. 4) commenced by plaintiff, resulted in a dismissal of the complaint, the court there having found that plaintiff had shown no legal right to an adjudication of separation and separate maintenance. By her own testimony in the separation action, plaintiff ceased to have any love and affection for defendant even prior to the date of her departure from defendant's bed and board. Although begged to return, she then refused and still refuses to discharge her obligation under the marriage contract.
If plaintiff's position is grounded in the legal obligation of a husband to support his wife, the facts here must surely invoke the doctrine of the celebrated case of Mirizio v. Mirizio (242 N.Y. 74), which although not in point as to facts, is nevertheless "bible" on the subject of support for a wife who leaves the "marital dwelling house."
Logically then, though he may be in duty bound to love and cherish her, in the absence of her reciprocal love and in the face of her refusal to return to the "marital dwelling house", he owes her no duty of support unless she shows that her departure was justified in law. In this matter, that particular issue was decided for us elsewhere and is res judicata.
It follows also, that if the consideration of "mutual" love and affection is found lacking in fact and the house in question ceases in fact to be a "marital dwelling house", the law will not presume a gift upon the husband's part (cornerstone of the Hosford case, supra).
In any event, Hosford (supra) is not the law of the case at bar. Neither Hosford nor the authorities cited therein concerned themselves with income from property held by the entirety. Those were cases which were concerned only with the proceeds of a sale of properties so held and the question of income was not at issue in any of them.
The great weight of authority establishes that the only difference between a tenancy by the entirety...
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