Worthing v. Cossar

• Decision Date: 25 May 1983
• Parties: Ralph WORTHING, Respondent, v. Phyllis COSSAR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 920

462 N.Y.S.2d 920

93 A.D.2d 515

Ralph WORTHING, Respondent, v. Phyllis COSSAR, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 25, 1983.

Jonathan A. Sax, Niagara Falls, for appellant.

Brick, Brick & Elmer, P.C., North Tonawanda, for respondent (Thomas Elmer, North Tonawanda, of counsel).

Before DILLON, P.J., and DOERR, BOOMER, GREEN and SCHNEPP, JJ.

SCHNEPP, Justice.

In this partition action defendant ex-wife appeals from an order after trial adjudging that the parties own their former marital residence as tenants in common, directing that the property be sold and the proceeds be equally divided between them and disallowing various claims by her for repairs, improvements, taxes and mortgage payments. Although we agree that the parties own the premises as tenants in common and that the property should be sold, we disagree with the trial court's distribution of the proceeds of the sale.

The parties were married in 1943 and in 1954 bought the single-family dwelling in which they lived together until February, 1968, when plaintiff moved to Seattle, Washington. Thereafter, he failed to make any payments on the existing mortgage on the premises. Defendant, however, continued to live on the property and she made the payments until the mortgage was fully paid and discharged in 1974. In 1969 plaintiff obtained an ex parte divorce in Seattle and later remarried. Defendant remarried on April 18, 1971, and after her remarriage lived in the marital residence with her new husband who died in September, 1980. On July 19, 1979 plaintiff commenced the within action to partition the property.

Defendant's claim that the trial court lacked jurisdiction to enter its interlocutory judgment because plaintiff's ex parte divorce was obtained without either service on her or an appearance by her is without merit. Although an ex parte divorce obtained without service of process or appearance by a spouse does not convert a tenancy by the entirety into a tenancy in common (see Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759), the subsequent marriages of both parties destroy "[t]he spousal unity concept upon which tenancy by the entirety is based and transform[s] their ownership into a tenancy in common" (Topilow v. Peltz, 25 A.D.2d 874, 875, 270 N.Y.S.2d 116). Thus, the remarriages of both parties in this case rendered the property subject to partition.

Next, defendant argues that the trial court erred in refusing to order reimbursement of sums expended by her in connection with the property for (1) repairs and improvements after commencement of the action, (2) taxes from 1974 through 1981 and (3) the mortgage payments before her remarriage. In addition, she argues that certain other allowances provided to her by the trial court were improperly offset by the rental value of the property during the term of her exclusive occupancy. These allowances were for her expenditures on (1) the mortgage after her remarriage; (2) repairs and maintenance before commencement of the action; and (3) fire insurance.

A partition action, although statutory (see Real Property Actions and Proceedings Law, Art. 9), is equitable in nature and an accounting of the income and expenses of the property sought to be partitioned is a necessary incident thereof (24 NY Jur 2d, Cotenancy and Partition, § 242). A court may compel the parties to do equity as between themselves (14 Carmody-Wait 2d, NY Prac, § 91:242) and may adjust the equities of the parties in determining the distribution of the proceeds of sale (Doyle v. Hamm, 52 A.D.2d 899, 900, 383 N.Y.S.2d 373; Sirianni v. Sirianni, 14 A.D.2d 432, 438, 221 N.Y.S.2d 693). Thus, in general, expenditures made by a tenant in excess of his obligations may be a charge against the interest of a cotenant (see Sirianni v. Sirianni, supra, p. 438, 221 N.Y.S.2d 693; see, also, Vlacancich v. Kenny, 271 N.Y. 164, 168, 2 N.E.2d 527; Johnson v. Depew, 33 A.D.2d 645, 305 N.Y.S.2d 243; Goergen v. Maar, 2 A.D.2d 276, 277, 153 N.Y.S.2d 826; 24 NY Jur 2d, Cotenancy and Partition, § 70).

In this case, the trial court erred by not granting defendant an allowance for her expenditures on home repairs after commencement of the action. Generally, a tenant in common may be allowed reimbursement for money expended in repairing and improving the property if the repairs and improvements were made in good faith and were necessary to protect or preserve the property (see Satterlee v. Kobbe, 173 N.Y. 91, 65 N.E. 952; Cosgriff v. Foss, 152 N.Y. 104, 46 N.E. 307; Ford v. Knapp, 102 N.Y. 135, 6 N.E. 283; Vlcek v. Vlcek, 42 A.D.2d 308, 346 N.Y.S.2d 893). However, "[t]he mere fact that the defendant ... has made improvements or repairs upon the property does not in itself necessarily give a right to an equitable allowance" (Bailey v. Mormino, 6 A.D.2d 993, 175 N.Y.S.2d 993). There must be proof of the circumstances and need for the restoration work (see Johnson v. Depew, 33 A.D.2d 645, 305 N.Y.S.2d 243, supra).

Defendant testified at trial that the house needed siding, that the shingles were "falling off", that the roof was "leaking", that "water was coming in around the front windows" and that she could not paint the house anymore. This testimony established that she acted in good faith in having siding installed on the house in 1980 and that the siding was necessary to protect the property. Contrary to the apparent holding of the trial court, the fact that she chose to have this work done after commencement of the action does not rebut the proof that she acted in good faith (cf. Eldridge v. Wolfe, 129 Misc. 617, 221 N.Y.S. 508). Thus, she is entitled to be reimbursed one-half the $4,400 cost of the siding (see Doyle v. Hamm, 52 A.D.2d 899, 383 N.Y.S.2d 373, supra).

The next allowance which defendant seeks is for the taxes which she paid from 1974 through 1981. Ordinarily, a tenant in common is entitled to be reimbursed for the share of the taxes paid by him for the benefit of his cotenants (see Johnson v. Depew, supra). However, where, as here, a wife has remarried and lives in the former marital residence with her new husband, the former husband is effectively ousted from the premises, and as long as the wife's occupancy is exclusive, she alone is responsible for any charges assessed against the property (Topilow v. Peltz, 25 A.D.2d 874, 270 N.Y.S.2d 116, supra). The trial court, therefore, properly refused to reimburse defendant for these taxes.

Defendant also seeks to be...