Wehrheim v. Brent, 65487

• Citation: 894 S.W.2d 227
• Decision Date: 07 March 1995
• Docket Number: No. 65487,65487
• Parties: Delbert WEHRHEIM, Appellant, v. Wayne A. BRENT, et al., Respondents.
• Court: Court of Appeal of Missouri (US)

Page 227

894 S.W.2d 227

Delbert WEHRHEIM, Appellant, v. Wayne A. BRENT, et al., Respondents.

No. 65487.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 7, 1995.

John E. Hilton, Carmody, MacDonald, Hilton, Wolf & Keast, P.C., Clayton, for appellant.

Garry McCubbin, Warren W. Friedman, Law Offices of Warren W. Friedman, St. Louis, for respondents.

SIMON, Judge.

Plaintiff Delbert Wehrheim appeals from the trial court's grant of motions by defendants Wayne A. Brent (Wayne Brent) and Barbara A. Brent (Barbara Brent), husband and wife, to quash plaintiff's Application for Charging Order (application) against Wayne Brent's interest in Brown-Brent & Associates, a Missouri general partnership. Plaintiff's sole point on appeal is that the trial court erred in quashing his application because Wayne Brent holds his interest in Brown-Brent & Associates (partnership) as a tenant in partnership rather than in a tenancy by the entireties, making the interest subject to being charged to satisfy a default judgment plaintiff secured against Wayne Brent. We affirm.

The facts are not in dispute. Wayne and Barbara Brent, along with two other married couples, entered into a partnership agreement on September 3, 1980, forming "Brown-Brent-Hanes & Associates." The agreement stated that it was

made and entered into ... by and among J.J. BROWN and NETTIE BROWN, his wife, as tenants by the entireties ("Brown"); WAYNE A. BRENT and BARBARA A. BRENT, his wife, as tenants by the entireties ("Brent"); and C.O. HANES and LUELLA E. HANES, his wife, as tenants by the entireties ("Hanes")....

The Browns and the Brents later purchased the partnership interest of the Haneses, and on November 4, 1983, the two remaining couples executed an amended partnership agreement, which, like the original agreement, expressly stated that the interests were taken by the couples as tenants by the entireties. Both agreements also expressly divided profits and losses to the participating couples as tenants by the entireties.

On January 30, 1992, plaintiff secured a default judgment against Wayne Brent for $13,366.40. Plaintiff filed his application to charge Wayne Brent's interest in the partnership on November 10, 1993, alleging that he was unable to discover any assets of Wayne Brent and that the charging order was necessary to prevent Wayne Brent from "secret[ing] any such assets he may have, including assets of [the] partnership." Wayne Brent responded with a motion to quash plaintiff's application on December 6, 1993, on the ground that his partnership interest was held in a tenancy by the entireties with Barbara Brent. On December 7, 1993, Barbara Brent filed a motion to intervene in the matter, along with her motion to quash plaintiff's application. Subsequently, the trial court granted Barbara Brent's motion to intervene and sustained her motion to quash the application. This appeal followed.

Plaintiff argues on appeal that Wayne Brent is a tenant in partnership with the other partners, including Barbara Brent, and that the charging order therefore is authorized by § 358.240, R.S.Mo.1986 (all further references to this section shall be to R.S.Mo.1986). In essence, plaintiff's position is that the partnership in its present amended form is owned by the Browns and Brents as four individuals rather than as two couples.

The primary criterion to be applied in determining whether a partnership has been created is the intention of the parties. Stein v. Jung, 492 S.W.2d 139, 144 (Mo.App.1973). While the parties here do not dispute the existence of the partnership, the nature of it is in dispute. The intention of the Brents clearly was to hold their interest in the partnership as tenants by the entireties. Both the original and the amended agreements identify the Brents' interest as being held by the entireties, and the clause regarding allocation of profits and losses also refers to the Brents as tenants by the entireties.

Where property is owned in tenancy by the entireties, each spouse is seized of the whole or entirety and not of a share or divisible part. Stafford v. McCarthy, 825 S.W.2d 650, 656 (Mo.App.1992). Each spouse owns an undivided interest in the whole of the property and no separate interest. Id. An execution arising from a judgment against one spouse alone cannot affect property held by a husband and wife as tenants by the entireties. Edgar v. Ruma, 823 S.W.2d 59, 61 (Mo.App.1991). In Missouri, an estate by the entireties may exist in personal as well as real property. In re Estate of Morton, 822 S.W.2d 456, 459 (Mo.App.1991). A partner's interest in a partnership is personal property. § 358.260, R.S.Mo. 1994. Therefore, it follows that a partnership interest may be held in a tenancy by the entireties.

We find nothing in § 358.240, nor anywhere else in the Uniform Partnership Act (UPA), to suggest that our legislature, in adopting the UPA, intended to abrogate the principle of tenancy by the entireties. The parties have not directed us to any Missouri cases holding that a partnership interest may be held in a tenancy by the entireties, nor has our research revealed any such cases. However, courts in several other states that recognize such tenancies have concluded that a partnership interest may be held by the entireties.

In M. Lit, Inc. v. Berger, 225 Md. 241, 170 A.2d 303 (1961), the court found that the Bergers, husband and wife, owned a share in a tavern as tenants by the entireties rather than as partners. It relied largely on the conduct of the couple regarding the business and the language of an agreement to sell the tavern, particularly the facts that the couple identified...