Toma v. Toma

• Citation: 163 P.3d 540,2007 OK 52
• Decision Date: 26 June 2007
• Docket Number: No. 102,801.,102,801.
• Parties: Timothy N. TOMA, Administrator of the estate of Margaret E. Meszaros, Plaintiff, v. Claire Henrietta TOMA, Matthew C. Toma, and Jill Renee Toma, f/k/a Jill Renee Eddy, Defendants, and Claire Henrietta Toma, in her capacity as settlor and trustee of the Claire Henrietta Toma Revocable Trust u/a dtd 12/30/2003, Plaintiff/Appellant, v. Timothy N. Toma, in his individual capacity and in his capacity as Ancillary Administrator of the Estate of Margaret E. Meszaros, Deceased, Defendant/Appellee.
• Court: Supreme Court of Oklahoma

163 P.3d 540

2007 OK 52

Timothy N. TOMA, Administrator of the estate of Margaret E. Meszaros, Plaintiff, v. Claire Henrietta TOMA, Matthew C. Toma, and Jill Renee Toma, f/k/a Jill Renee Eddy, Defendants, and Claire Henrietta Toma, in her capacity as settlor and trustee of the Claire Henrietta Toma Revocable Trust u/a dtd 12/30/2003, Plaintiff/Appellant, v. Timothy N. Toma, in his individual capacity and in his capacity as Ancillary Administrator of the Estate of Margaret E. Meszaros, Deceased, Defendant/Appellee.

No. 102,801.

Supreme Court of Oklahoma.

June 26, 2007.

As Amended July 24, 2007.

On Certiorari to the Court of Civil Appeals, Division III.

¶ 0 Appellant Claire Henrietta Toma brought this declaratory judgment action for a ruling the judgment lien held by Appellee, Timothy N. Toma, was extinguished when her husband, Charles Toma, died. Appellee obtained a judgment in Ohio against Charles and filed the judgment against Charles' interest

in his homestead property in Tulsa County, Oklahoma, pursuant to 12 O.S.2001 § 706. Charles' and Claire owned the homestead as joint tenants with rights of survivorship. Timothy did not attempt to execute on his judgment lien before Charles' death because of constitutional and statutory prohibitions against the forced sale of homestead property. Claire filed this declaratory judgment action, seeking a declaration that Timothy's lien against Charles' interest in the property was extinguished because the joint tenancy was never severed during Charles' life by an attempted execution on the lien. The trial court granted summary judgment in favor of Timothy and held the lien remained valid after Charles' death. Claire appealed and the Court of Civil Appeals (COCA) reversed the trial court's summary judgment order. COCA held the lien was extinguished when Charles died without Timothy's attempted execution on the lien resulting in severance of the joint tenancy. This Court previously granted certiorari.

OPINION OF COURT OF CIVIL APPEALS IS VACATED; TRIAL COURT'S JUDGMENT IS REVERSED; APPELLANT'S MOTIONS FOR ATTORNEY FEES ARE DENIED; APPELLANT'S MOTIONS FOR COSTS ARE GRANTED IN PART AND DENIED IN PART.

Steven M. Harris, Douglas R. Haughey, Tulsa, OK, for Appellant.

Christopher J. Petersen, Oklahoma City, OK, for Appellee.

OPINION

WATT, Justice.

¶ 1 In this case, we are asked to find an exception to the general rule that a lien on joint tenancy property is extinguished if the creditor fails to execute on the lien before the death of the joint tenant. The lien at issue arose pursuant to 12 O.S.2001 § 706(B)¹ which incorporates portions of the Oklahoma Constitution² and the Oklahoma Statutes³ prohibiting the forced sale of homestead property for the payment of debts. We decline to find such an exception.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Charles John Toma and Claire Henrietta Toma formed the Toma Family Living Trust (Family Trust) on September 3, 1987, to which they as trustees conveyed their homestead property. Defendant/Appellee Timothy N. Toma (Timothy) obtained a judgment against Charles in Ohio on October 28 2002⁴ and registered it in the Court Clerk's Office of Tulsa County as a foreign judgment on December 31, 2002, pursuant to the requirements of 12 O.S.2001 § 721.⁵ He recorded the judgment in the County Clerk's Office of Tulsa County on January 8, 2003, pursuant to the requirements of 12 O.S.2001 § 706(B). On October 31, 2003, Charles and Claire as trustees conveyed the property from the Family Trust to themselves as joint tenants with rights of survivorship. On November 26, 2003, Charles died. Claire filed an Affidavit of Surviving Joint Tenant in the County Clerk's Office on December 31, 2003. On the same day, Claire conveyed the property to the Claire Henrietta Toma Revocable Trust, u/a dated 12/30/03 (Claire's Trust).

¶ 3 Timothy attempted to execute on his lien for the first time after Charles' death.⁶ Claire filed this action for a declaratory judgment, seeking a determination that the judgment lien was extinguished because Charles' joint tenancy interest, to which the lien attached, ceased to exist when Charles died. The trial court granted summary judgment in Timothy's favor. The court held that Timothy still possessed a valid judgment lien on the property held by Claire although he never attempted to execute on it.

¶ 4 Claire appealed the trial court's judgment pursuant to the accelerated procedure for summary judgment appeals. See Supreme Court Rule 1.36, 12 O.S. Supp.2003, Ch. 15, App. 1. Timothy argued on appeal and now argues on certiorari that he was prohibited by Oklahoma law⁷ from executing on his judgment lien against Charles' interest because the property to which his lien attached was homestead property. It appears to be undisputed that Claire and Charles used the property at all times as their homestead whether it was owned by the Family Trust or by Charles and Claire as joint tenants.

¶ 5 The Court of Civil Appeals (COCA) reversed the trial court's judgment. COCA considered the general rule relating to the common law rule of "joint tenancy" and stated:

The facts are undisputed and the issue is therefore one of law: whether the general rule, that executing on a lien severs a joint tenancy, while a lien on joint tenancy property is extinguished if the creditor fails to execute on the lien before the death of the debtor joint tenant, applies where execution is barred by law, as in the case of homestead property. [emphasis added].

¶ 6 Citing Ladd v. State of Oklahoma ex rel., Oklahoma Tax Commission, 1984 OK 60, 688 P.2d 59, COCA held Timothy presented no authority for taking this case out of the general rule relating to liens on joint tenancy property and that his lien was extinguished. We previously granted Timothy's petition for certiorari.

CONTENTIONS

¶ 7 In his petition for certiorari, Timothy argues the dispositive issue has been stated incorrectly as whether attachment of the lien itself constitutes severance, or whether he took the necessary steps to accomplish such a severance. Instead, he contends the true problem before the Court is the still unreconciled conflict between the requirement that such a severance be accomplished and the legal prohibitions that forbid an execution and forced sale of homestead property. We find the overriding issue is whether a § 706 judgment lien properly filed against a judgment debtor's homestead can survive a deceased joint tenant/judgment debtor's interest in his homestead.

¶ 8 Timothy acknowledges a judgment lien on homestead property cannot be enforced "while homestead protections are in effect." However, in support of his argument that the lien remains viable, he contends the 1997 amendment of § 706 providing for attachment of liens to homestead property is intended to place an effective encumbrance on property and to provide security to judgment creditors which did not previously exist. He argues that because a § 706 lien now attaches to the homestead, the amendment protects legitimate judgment creditors by remaining an encumbrance on the property. Thus he argues amended § 706 requires judgment liens, once they have attached to the homestead, to be satisfied to give clear title. He contends this is accomplished without depriving a judgment debtor of traditional homestead protections while the property is used as his homestead.

¶ 9 Claire contends COCA correctly found Charles' joint tenancy interest in the homestead property was extinguished at the time of his death because Timothy made no attempt to execute on the judgment and thus sever the joint tenancy.

¶ 10 Timothy takes issue with COCA's determination that a sale is required in Oklahoma to sever a joint tenancy. As authority, COCA cited 60 O.S.2001 § 74 which pertains to the creation and severance of joint tenancy and tenancy by the entirety estates. It provides in part:

[T]he provisions of this act shall apply to all estates in joint tenancy or tenancy by entirety in either real or personal property heretofore or hereafter created.

Nothing herein contained shall prevent execution, levy and sale of the interest of the judgment debtor in such estates and such sale shall constitute a severance. [emphasis added].

JOINT TENANCY PROPERTY AND THE COMMON LAW

¶ 11 The principal characteristic of joint tenancy property is the right of survivorship in the joint tenants. Casey v. Casey, 2005 OK 13, ¶ 8, 109 P.3d 345, 348, citing Estate of MacFarline, 2000 OK 87, ¶¶ 16-17, n. 5, 14 P.3d 551, 558. Unity of time, title, interest, and possession are requisites for creation of a joint tenancy. Clovis v. Clovis, 1969 OK 170, 460 P.2d 878. A joint tenancy creates a present estate which, absent severance during the life of the joint tenants, assures the surviving tenant absolute ownership of the whole subject matter of the joint tenancy. Id., at 882. Joint tenancy property passes by operation of law to the surviving joint tenants at the instant of the joint tenant's death. Casey v. Casey, 2005 OK 13, ¶ 8, 109 P.3d 345, 348, citing Bleakley v. Bowlby, 1976 OK 158, 557 P.2d 894, 897; Littlefield v. Roberts, 1968 OK 180, 448 P.2d 851, 855. It does not become part of the deceased joint tenant's estate. See Casey v. Casey, 2005 OK 13, 109 P.3d 345, citing In re Estate of MacFarline, 2000 OK 87, ¶ 16, 14 P.3d 551, 558. The title of the deceased joint tenant "terminates and vests eo instanti (i.e.immediately) in the survivor. Because joint tenants are seized of the whole while alive, the survivor's interest is simply a continuation, or extension, of his/her existing interest." In re Estate of MacFarline, 2000 OK 87, ¶ 16, n. 5, 14 P.3d 551, 558, citing Clovis v. Clovis, 1969 OK 170, 460 P.2d 878, 881.

¶ 12 We note the above cited statute, 60 O.S.2001 § 74, pertaining to the creation and severance of joint tenancies, was enacted in 1945 and did not include the term "survivorship." This Court held in Raney v. Diehl, 1971 OK 28, 482 P.2d 585, that ...