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STOP 35 v. DAVID HAINES. APPEAL DELLA K. HAINES (05/13/88)

filed: May 13, 1988.

STOP 35, INC.
v.
DAVID HAINES. APPEAL OF DELLA K. HAINES



Appeal from Order of the Court of Common Pleas, Civil Division, of Juniata County, No. 345 of 1982.

COUNSEL

Lester H. Zimmerman, Jr., Lewistown, for appellant.

Andrew L. Winder, Mifflintown, for Stop 35, appellee.

Wieand, Tamilia and Cercone, JJ. Tamilia, J., files a dissenting statement.

Author: Wieand

[ 374 Pa. Super. Page 605]

In response to a petition in aid of execution the trial court entered an order directing the former wife of a judgment debtor to pay the judgment from proceeds derived from the sale of real estate owned by the wife. The wife appealed. We reverse.

On August 20, 1982, Stop 35, Inc. confessed judgment on a note which had been executed by David Haines in the principal amount of $2,249.93. On that date, David Haines and his wife, Della, were owners by the entireties of real estate situated in Fayette Township, Juniata County. Haines and his wife, however, had separated in January, 1982 and by August, 1982, a divorce action was pending in the Court of Common Pleas of Juniata County. Because of the separation and impending divorce, Haines and his wife, on May 6, 1982, had executed a homemade agreement*fn1 which provided, inter alia, that

[ 374 Pa. Super. Page 606]

"When ever property is sold it is agreed that after the house is paid off balance will be divided equally."

Whether the agreement regarding this real estate was subsequently re-negotiated and changed is not clear, although there is testimony to that effect which the trial court appears to have accepted as credible. In any event, by deed dated December 26, 1984 and recorded on February 14, 1985, the jointly owned real estate was conveyed to Della Haines alone. The consideration recited in the deed was one ($1.00) dollar. A divorce decree was entered on the following day, February 15, 1985. On March 7, 1985, Della Haines, unmarried, conveyed the real estate for a consideration of $37,500.00 to the parents of her former husband. At settlement, the sum of $2,254.93 (the amount of Stop 35's judgment) was withheld and placed in escrow pending a determination of Stop 35's right to recover the judgment which it held against David Haines from the real estate sold by his former wife.

On March 8, 1985, Stop 35 filed a petition in aid of execution, and the trial court issued a rule against Della Haines, David Haines, and the escrow holder to show cause why Stop 35's judgment should not be paid from the moneys held in escrow.*fn2 The petition contains averments (1)

[ 374 Pa. Super. Page 607]

    that the judgment constituted a lien against David Haines's interest in the real estate which was not discharged by the conveyance to his wife; and (2) that the deed to Della Haines was fraudulent because it was without adequate consideration. Following an evidentiary hearing, at which David Haines did not appear but which was defended by Della Haines, the trial court directed the escrow holder to deliver the moneys being held to Stop 35 in satisfaction of the judgment which it held against David Haines.

Stop 35's judgment against David Haines did not constitute a lien against the real estate which he and his wife owned as tenants by the entireties. A husband and wife do not own separate interests in entireties property which can be reached by their individual creditors. Kauffman v. Stenger, 151 Pa. Super. 313, 314, 30 A.2d 239, 240 (1943). See also: Patwardhan v. Brabant, 294 Pa. Super. 129, 439 A.2d 784 (1982). "Because a tenancy by the entireties is grounded in the unity of the marital relationship, it can be severed only in certain limited circumstances." Clingerman v. Sadowski, 513 Pa. 179, 183-184, 519 A.2d 378, 381 (1986). See also: 18 P.L.E. Husband and Wife ยง 12. In addition to death of one of the co-tenants, divorce, or a joint conveyance, the parties can sever the tenancy by the entireties by agreement, express or implied. In the instant case, the trial court held that the entireties estate ...


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