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HELEN A. FASCIONE v. DANIEL FASCIONE. HELEN A. FASCIONE V. DANIEL FASCIONE (12/07/79)

filed: December 7, 1979.

HELEN A. FASCIONE, APPELLANT,
v.
DANIEL FASCIONE. HELEN A. FASCIONE V. DANIEL FASCIONE, APPELLANT



No. 1462 October Term, 1978, No. 1576 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Montgomery County, No. 77-8088 in Equity.

COUNSEL

Arthur L. Jenkins, Jr., Norristown, for appellant at No. 1462 and for appellee at No. 1576.

C. George Milner, Philadelphia, for appellant at No. 1576 and for appellee at No. 1462.

Price, Spaeth and Watkins, JJ. Spaeth, J., files a concurring and dissenting opinion.

Author: Price

[ 272 Pa. Super. Page 533]

This matter is before us on cross appeals from a decree in equity entered by the trial court. Upon a complaint brought by Helen A. Fascione, hereinafter referred to as wife, and a subsequent counterclaim filed by Daniel Fascione, hereinafter referred to as husband, the chancellor concluded that the husband had excluded his wife from the enjoyment of certain items of personalty, and that such action constituted a misappropriation of those items. The chancellor consequently granted partition of the personal property, but not the real estate or bank accounts held by the parties as tenants by the entireties, and ordered the wife to reimburse the husband for her share of the 1976 income tax liability paid by the latter, viz. $2,160.13. For the reasons stated herein, we reverse in part and affirm in part.

Initially, it is well recognized that a chancellor's findings of fact, when supported by competent evidence, have the weight of a jury verdict. Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978); Baker v. Zingelman, 259 Pa. Super. 441, 393 A.2d 908 (1978); Cardamone v. University of Pittsburgh, 253 Pa. Super. 65, 384 A.2d 1228 (1978). "The chancellor's findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and observe their demeanor on the stand." Vento v. Vento, 256 Pa. Super. 91, 95, 389 A.2d 615, 617-18 (1978), quoting Stauffer v. Stauffer, 465 Pa. 558, 567, 351 A.2d 236, 240 (1976).

With this tenet in mind, the chancellor's factual findings may be summarized as follows. The parties herein separated on March 31, 1977, after having been married some twenty years. The separation was precipitated by the wife's withdrawal from the marital domicile, an action not consented to by her husband. At the time of the separation, the two owned as tenants by entireties their home and accompanying real estate, all personalty located in the residence with the exception of personal clothing and effects, and a savings account containing a balance of $709.61. A support action

[ 272 Pa. Super. Page 534]

    instituted by the wife resulted in an order requiring her husband to make payments of $220 per week.*fn1

Subsequently, the husband moved certain pieces of furniture from the marital domicile to the home of his aunt in Delaware County, while the wife removed some of her clothing and certain place settings. He has not changed the locks on the door, but has regularly utilized a chain lock which had been installed prior to the separation.

As to the entireties bank account, the husband has made deposits and withdrawals with the result that at the time of the hearing, the balance stood at $9.61. The funds were utilized, in whole or in part, for the payment of joint obligations in connection with the dwelling house, such as taxes -- amounting to $1,088.50 -- mortgage payments, and insurance premiums. The husband has also paid the full tax balance due to the United States Government on the 1976 income of both parties.*fn2

From these facts, the court of common pleas first concluded that the husband's removal of the personalty from the marital residence constituted an offer on his part to destroy the tenancy by the entireties in the personalty. While we agree with this limited conclusion, the chancellor erred in not extending the partition to the real estate and bank accounts.

It is clear that once an estate by the entireties has been created, neither spouse, acting independently, may dispose of any portion of the estate so as to effect a severance or encumbrance of the property. Backus v. Backus,

[ 272 Pa. Super. Page 535464]

Pa. 380, 346 A.2d 790 (1975); Del Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Vento v. Vento, supra; Stitzinger v. Stitzinger Lumber Company, Inc., 187 Pa. Super. 453, 144 A.2d 486 (1958). Neither may one spouse appropriate to his or her own use the property held in such tenancy; the only appropriation that can be justified being one made in good faith for the mutual benefit of both parties to the tenancy. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934). Nevertheless, it is equally well established that an estate by the entireties may be terminated by agreement, express or implied, of the parties. Community Federal Savings & Loan Association v. Luckenbach, 436 Pa. 472, 261 A.2d 327 (1970); Brose Estate, 416 Pa. 386, 206 A.2d 301 (1965); Berhalter v. Berhalter, supra.

While these severe restrictions on alienation were previously in accord with the jurisprudential concept of the unity of husband and wife, they presented serious problems when the couples separated. Our supreme court recognized these difficulties in Berhalter v. Berhalter, supra, when it concluded that the action of one separated spouse, in withdrawing monies in her own behalf from an entireties bank account, was tantamount to an offer by her to the husband to destroy the entireties estate. The husband's subsequent institution of suit for division of the fund constituted an acceptance of the offer and consummation of an implied agreement to divide the estate. Although this 'offer' was later recognized as a legal fiction, Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968); Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961), the principle of an implied agreement remains viable. As we have recently reiterated in Vento v. Vento, supra, 256 Pa. Super. at 93-94, 389 A.2d at 617, quoting Stemniski v. Stemniski, supra, 403 Pa. at 42, 169 A.2d at 53:

"A violation of the rules by one's spouse appropriating the property to his own use works a revocation of the estate by the fiction of appropriation's being an offer of an agreement to destroy the estate and an acceptance of that offer when the other spouse starts suit: the property is then fit for accounting and division."

[ 272 Pa. Super. Page 536]

    was done because he thought the items might be required if he set up an individual apartment, the result is identical; namely, an exclusion of the wife from entireties property. Such ...


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