No. 309 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Fayette County, Civil Action - Law - at No. 1321 of 1978, G.D.
Donald J. McCue, Connellsville, for appellant.
David W. Pickens, Uniontown, for appellee.
Brosky, DiSalle and Shertz, JJ.
[ 288 Pa. Super. Page 24]
Henry C. Livingston, Jr. has appealed from the lower court's decision that he is not entitled to partition of all entireties property. The central issue for our determination is whether appellee wrongfully appropriated jointly held assets to the detriment of appellant, constituting a revocation of the estate of tenancy by the entireties, thereby subjecting all entireties property to partition at this time. The court below decided that appellee had used entireties property to support herself and to pay certain of her husband's debts and had not wrongfully appropriated jointly held assets. On this basis, it held that a partition was not appropriate and should not be granted. We reverse.
Appellant's chief contention is that his wife wrongfully appropriated entireties property to his detriment. Such appropriation, he asserts, constitutes a revocation of the tenancy by the entireties and as such, is an offer to destroy the estate, which offer he has accepted by his bringing this action for partition.
The parties were married June 8, 1941 and lived together as husband and wife until the end of May, 1978 when appellant left the marital residence. At the time of his leaving, the parties owned the following property by the entireties: a $20,000 certificate of deposit; two savings accounts with Greensburg Savings & Loan having respective balances of $2,129.93 and $996.79; a building fund with Gallatin National Bank in the amount of $132.40; a checking account with Gallatin National Bank in the amount of $213.38; as well as various items of personal property including appliances, furniture and insurance policies. In addition, there was a $40,000 certificate of deposit titled in Mr. Livingston's name.
[ 288 Pa. Super. Page 25]
During the entire course of the marriage, appellee had been supported by appellant and at no time was appellee employed or self-supporting. At the time of their separation, Mr. and Mrs. Livingston had been using for their support the proceeds from a personal injury settlement received by Mr. Livingston in 1970, as well as Mr. Livingston's pension in the amount of $115,000. At the time of his leaving, appellant did not indicate to his wife whether he would continue to support her, although appellee testified that he told her when he left that she could live on the monies contained in the joint bank accounts.
After the appellant left the marital residence, he did not send appellee any funds for her support. In October of 1978, an order of support was entered which called for him to pay the sum of $385 monthly for appellee's support.*fn1 Appellee testified that her husband did not make a payment on the support order until February, 1979, which allegation was not refuted by appellant.*fn2
Beginning in June, 1978, appellee began using the parties' jointly held assets. Without informing her husband, she obtained a safe deposit box in her own name with her daughter's name as deputy, into which she put the passbooks pertaining to the Gallatin Bank building fund and the Gallatin Bank checking account and the two certificates of deposit. She had both the Greensburg Savings & Loan savings account in the amount of $2,129.93 and the checking account with Gallatin National Bank in the amount of $213.38 changed over ...