Appeal from decree of Court of Common Pleas, Family Division, of Allegheny County, No. M-165 of 1970, in case of Gerasimos Lykiardopoulos v. Mary V. Lykiardopoulos.
Stanley W. Greenfield, with him Alan J. Scheimer, and Greenfield & Minsky, for appellant.
Barry E. Wood, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Roberts concurs in the result.
Gerasimos and Mary Lykiardopoulos were married on June 15, 1950. While they were married they purchased two parcels of real estate in the City of Pittsburgh, which they held as tenants by the entireties. The parties separated in January of 1967. It appears from the pleadings that Mary (hereafter referred to as the appellant) retained beneficial enjoyment of both properties from the date of the separation until the present. The appellant used one parcel as a combination dwelling and coffee shop, and the other as a rental property from which she received all the income. It also appears that the appellant has been responsible for all the expenses necessary to preserve the properties since 1967. On July 1, 1969, the parties were divorced and on December 7, 1970, Gerasimos (hereafter referred to as the appellee) filed a complaint in equity seeking an accounting for the profits derived from the use of the properties by the appellant and the partition and sale of the properties, in accord with the provisions of the Act of May 10, 1927, as amended.*fn1
The appellant filed an answer to the complaint and a counterclaim in which she sought to have the following items credited to her and set off against any interest of the appellee in the properties: (1) child support payments from the date the appellee deserted the appellant and two minor children until February, 1971, when the appellee began paying child support under a court order; (2) support for herself from the date of the separation until the date of the divorce; (3) all money she had invested in the properties as part of the initial purchase price; (4) all money spent to preserve the properties including mortgage payments, taxes, insurance, utilities and upkeep. According to the appellant, the value of the combined items claimed in the counterclaim exceeds the value of appellee's one-half interest in the properties. Therefore, the appellant requested the court to order the appellee to convey his record interest in the properties to the appellant, in lieu of paying her the money she claimed was owed to her. The counterclaim was not endorsed with a notice to plead and no answer was filed thereto.
After a hearing the court below found that the ownership of the real estate, which was held by the entireties during the marriage, was converted to a tenancy in common by operation of the Act of May 10, 1927, as amended, and should be partitioned in accordance with the provisions of that Act. In disposing of the appellant's counterclaim, the court held that the claims for support were personal obligations of the appellee not connected with the real estate and therefore not proper matters for consideration in the partition proceedings. The court appointed a trustee to sell the properties and account for the proceeds and denied without prejudice the appellant's counterclaim for support. The appellant filed exceptions to the decree, which were argued
before the court below and denied. This appeal is from the denial of the exceptions.*fn2
The appellant's first contention is that the appellee has no standing to seek partition of this property because it was his desertion of the appellant that led to the divorce. The appellant argues that the doctrine of clean hands should prevent the appellee from prevailing in a court of equity. There is no merit in the appellant's argument. The action in partition following divorce is specifically authorized by statute. The Act of May 10, 1927, as amended, 68 P.S. 501 et seq. provides a complete procedure to be followed when parties who have been divorced partition property formerly held as tenants by the entireties. There is nothing in the statute to indicate that recourse to the provisions of the statute is limited to the non-culpable party to the divorce proceedings. Indeed, the language of the statute is to the contrary: "Whenever any husband and wife . . . shall be divorced . . . ...