Ronollo v. Jacobs, 71312
| Decision Date | 01 August 1989 |
| Docket Number | No. 71312,71312 |
| Citation | 775 S.W.2d 121 |
| Parties | Virginia RONOLLO and Carl Ronollo, Respondents, v. Richard M. JACOBS, Appellant. |
| Court | Missouri Supreme Court |
Richard M. Jacobs, St. Louis, for appellant.
John W. Moticka, Michael D. Arri, St. Louis, for respondents.
Virginia and Carl Ronollo were married on December 21, 1947. On October 28, 1966, Mr. and Mrs. Ronollo purchased real estate in University City, St. Louis County, Missouri. The general warranty deed conveyed the property to "Carl J. Ronollo and Virginia A. Ronollo, his wife." Carl Ronollo and Virginia Ronollo continue to own the property.
Richard M. Jacobs provided legal representation for Virginia Ronollo in a proceeding for dissolution of marriage initiated by Carl Ronollo. On March 19, 1981, the Circuit Court of St. Louis County entered a decree of legal separation in that proceeding. With respect to the subject real estate, the trial court provided in its decree:
It is further ordered that the home at 6953 Columbia Avenue, University City, Missouri, be listed for sale immediately at $70,000 and sold within a reasonable time, on the open market, without substantial sacrifice herein; after payment of the mortgages and encumbrances thereon and cost of sale, the balance of proceeds shall be divided equally between the parties. If the above be not accomplished within a reasonable time, the Court will enter the premises sold at a public sale.
The court also found that Mr. Jacobs was entitled to $5,000 attorney's fees of which $2,600 had been paid. The court ordered Virginia Ronollo to pay the balance to Mr. Jacobs from her share of the proceeds from the sale of the real estate.
On April 10, 1981, at Mr. Jacobs' request Mrs. Ronollo executed a $15,000 promissory note bearing interest at the rate of 18% per annum in favor of Mr. Jacobs and further executed a deed of trust to secure payment of the promissory note. The deed of trust purported to allow a lien in favor of Mr. Jacobs on the subject property. Mrs. Ronollo executed these instruments in order to secure Mr. Jacobs' services in connection with lodging an appeal from the judgment. Mr. Ronollo was not a party to and did not sign, the promissory note or the deed of trust.
On September 14, 1981, upon Mr. Ronollo's motion, the trial court entered an order converting the decree of legal separation to a decree of dissolution.
On June 19, 1986, Virginia and Carl Ronollo filed a four count first amended petition against Mr. Jacobs. Count IV of the petition requested the court to set aside the April 10, 1981, deed of trust and to quiet title to the property in Virginia and Carl Ronollo. Mr. Jacobs timely answered the Ronollos' First Amended Petition. Virginia and Carl Ronollo subsequently moved for summary judgment on Count IV of their First Amended Petition. Mr. Jacobs filed suggestions and an affidavit in opposition to the Ronollos' motion. After hearing, the court entered judgment in favor of Virginia and Carl Ronollo on Count IV and set aside the deed of trust. Pursuant to Rule 74.01(b) the court found no just reason for delay and declared its judgment a final judgment for purposes of appeal.
Mr. Jacobs appealed to the Court of Appeals, Eastern District, which affirmed the judgment of the trial court and transferred the case to this Court in order to determine the legal effect of the decree of legal separation on an estate by the entirety. The judgment of the trial court is affirmed.
Mr. Jacobs first contends that the trial court erred in setting aside the deed of trust executed by Virginia Ronollo because the entry of the decree of legal separation severed the tenancy by the entirety and created a tenancy in common.
The issue presented by the facts of this case is whether the entry of a decree of legal separation severs the estate by the entirety when the trial court in its discretion does not set apart to either spouse an interest in the real property itself but rather sets apart to each spouse a portion of the net proceeds of the sale of the property.
In considering the question, the Court must be governed by principles of the law of real property as well as the policy considerations underlying the legislature's authorization of the entry of a decree of legal separation. Mr. Jacobs does not seriously dispute that Mr. and Mrs. Ronollo took the property as tenants by the entirety. In Missouri a conveyance of real property to a husband and wife as co-grantees is presumed to create a tenancy by the entirety if there are no limiting words in the operative clauses of the deed. Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 297-98 (1945). Here, the deed of October 28, 1966, conveyed the property to "Carl J. Ronollo and Virginia A. Ronollo, his wife," and contained no other declaration of the status of the co-grantees. This language is presumed to create a tenancy by the entirety and Mr. Jacobs does not attempt to rebut the presumption.
In Missouri and at common law an estate by the entirety possesses like characteristics. Unities of interest, time, title and possession exist in the husband and wife. Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 232 (Mo.1947). Each spouse is seized of the whole or entirety and not a share, moiety or divisible part. McElroy v. Lynch, 232 S.W.2d 507, 509 (Mo.1950). Thus, neither spouse owns an undivided half interest in entirety property; the whole entirety estate is vested and held in each spouse and the whole continues in the survivor.
The divorce of tenants by the entirety destroys the tenancy and converts it into a tenancy in common. Allan v. Allan, 364 S.W.2d 578, 582 (Mo.1963). So long as spouses remain married, however, a tenancy by the entirety may be terminated or severed only by joint and mutual action on the part of husband and wife. State ex rel. State Highway Comm'n v. Morganstein, 649 S.W.2d 485, 489 (Mo.App.1983). In the absence of evidence indicating a contrary intention by both parties a tenancy will be presumed to follow the proceeds of the sale of entirety property. Id.
The question then becomes one of the effect of the decree in this case. The legislature provided that in a proceeding for legal separation, as well as dissolution, the court shall set apart to each spouse his property and shall divide the marital property. § 452.330.1. 1 The court's order as it affects distribution of marital property is a final order not subject to modification. §§ 452.330.5, RSMo Supp.1988, 452.360.2. A certified copy of a court decree affecting title to real estate may be filed for record in the office of the recorder of deeds in the county and state in which the real estate is situate. § 452.330.6, RSMo Supp.1988.
The matter before the Court poses a question of arguably conflicting policies underlying the ability of the trial court to enter a decree of legal separation, rather than one of dissolution. On the one hand the legislature recognized the need for a final order as it affects distribution of marital property in a legal separation. § 452.330.5, RSMo Supp.1988. On the other hand, the legislature provided an alternative to dissolution, a legal separation, wherein the bonds of marriage are not immediately dissolved. § 452.360.3. Both the western and eastern districts of our court of appeals have appropriately determined that the purpose of § 452.360.3 is to allow the parties a "cooling off" period, a time during which husband and wife may acquire perspective on their problems and, perhaps, commence to resolve their differences. McRoberts v. McRoberts, 555 S.W.2d 682, 684 (Mo.App.1977); Howard v. Howard, 583 S.W.2d 553, 555 (Mo.App.1979). The legislature has required that upon motion of both parties the court must set aside a decree of legal separation. § 452.360.4.
The legislature did not envision, however, that the period of legal separation should be infinite unless both parties agree. No earlier than ninety days after entry of a decree of legal separation the court may convert the decree of legal separation to a decree of dissolution of marriage on motion of either party. § 452.360.3.
In exercising its discretion, a trial court, aware of the purposes and policy objectives of the legal separation, may fashion its decree accordingly. Here, the decree did not alter the manner in which Mr. and Mrs. Ronollo held the property. The trial court did not set apart the real estate to either spouse but simply ordered the sale and a division of net proceeds thereafter. The language of the decree does not purport to affect the estate until the parties receive the proceeds. Consequently, absent entry of a decree of dissolution of marriage in this case, Mr. and Mrs. Ronollo remained owners of the real estate as tenants by the entirety. 2
Mr. Jacobs next claims that the trial court erred in setting aside the deed of trust because, even if the estate by entirety continued, Mrs. Ronollo warranted her conveyance and is estopped from denying that she was fully seized of the property at the time she executed the deed of trust.
The doctrine of estoppel is not properly in issue here. Estoppel is an affirmative defense and must be pleaded specially or will be waived. Rule 55.08; Phipps v. Shelter Mut. Ins. Co., 715 S.W.2d 930, 934 (Mo.App.1986). The purpose of the rule is to give notice to the opposing party that the defense will be used. White v. Wilks, 357 S.W.2d 908, 913 (Mo.1962). The party asserting an estoppel bears the burden of proving it. Medical W. Bldg. Corp. v. E.L. Zoernig & Co., 414 S.W.2d 287, 293-94 (Mo.1967). Every fact essential to create...
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