Burry v. Burry

28 Pa. D. & C.3d 579, 1982 Pa. Dist. & Cnty. Dec. LEXIS 123
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedOctober 14, 1982
Docketno. 80-13542
StatusPublished
Cited by1 cases

This text of 28 Pa. D. & C.3d 579 (Burry v. Burry) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burry v. Burry, 28 Pa. D. & C.3d 579, 1982 Pa. Dist. & Cnty. Dec. LEXIS 123 (Pa. Super. Ct. 1982).

Opinion

YOHN, J.,

In this case, this court is again presented with the issue of the proper treatment of the distribution upon divorce of a marital residence purchased with the sole funds of one spouse prior to the marriage and transferred to both spouses jointly as tenants by the entireties during the parties’ marriage. By agreement of the parties, division of the marital residence is the only matter at issue before this court.

STATEMENT OF FACTS

1. In 1951, John Burry purchased with his funds a house located at 323 Warren Street, Norristown, Montgomery County, Pa., for the sum of $8,860.

2. Plaintiff and defendant were married to each other on October 14, 1967. It was the second marriage for both. No children were born of the marriage.

3. On May 16, 1972, defendant deeded the house to himself and plaintiff as tenants by the entireties. At this time the value of the propery was approximately $16,000. Defendant stated that it was not his intent to make a gift but that the transfer was based upon “newspaper advice” and the urgings of plaintiff. Plaintiff stated that she only requested the deed [581]*581on a few occasions. No conditions or restrictions were placed on the deed.

4. For purposes of this matter, the property at 323 Warren Street, Norristown, Montgomery County, Pa., is valued at $32,000 and is the only asset considered for distribution. There is no mortgage or lien against the premises.

5. During the marriage both parties were employed as laborers at Superior Tube Company at reasonably comparable rates of pay and are presently so employed. Plaintiff now earns approximately $17,300 per year while defendant earns approximately $18,300 per year.

6. For the first three years of the marriage, plaintiff gave defendant her paycheck and he in turn provided her with spending money. Thereafter, she kept her paycheck and he kept his.

7. Early in the marriage, plaintiff transferred $1,300 from her bank account to defendant’s account in order to pay household bills. Additionally, plaintiff provided $300 for construction of a new patio and $1,000 for the purchase of carpeting for the house. Certain bedspreads, curtains, and shrubbery for the house were also purchased by plaintiff at other times.

8. After plaintiff stopped giving her paycheck to defendant, all expenses of maintaining the house, including the mortgage, taxes, insurance, repairs, and utilities were paid solely by defendant. The mortgage was paid in full by 1974.

9. Throughout the marriage both parties cleaned the house. Plaintiff did all of the cooking for both of them.

10. The parties separated in July, 1980, at which time plaintiff moved out of the marital residence. She presently resides in an apartment in Royersford, Montgomery County, Pa., while defend[582]*582ant continues to reside at the marital residence. Plaintiff is 59 years of age, and defendant is 60 years of age. Both are in good health.

11. A final decree in divorce between plaintiff and defendant was granted on August 11, 1981.

DISCUSSION

(1) Marital Property

Before apportioning the marital residence between the parties, the court must determine what portion, if any, of the marital residence constitutes marital property and what portion, if any, is excluded as the separate property of either party.

On May 16, 1972, defendant transferred property he brought into the marriage, the real estate located at 323 Warren Street, Norristown, Montgomery County, Pa., to himself and plaintiff as tenants by the entireties.1

Under Section 401(e) of the Divorce Code, 23 P.S. §401(e), marital property is defined as “all property acquired by either party during the marriage except: . . . (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.”

Three different methods of analysis have been used in differing jurisdictions to determine the appropriate result in factual situations similar to the case at bar.

[583]*583Under one approach, the transfer by defendant would be considered a gift of one-half interest in the property to plaintiff and a retention of the other one-half interest in himself. If this analysis were followed in the instant case, the following result would ensue: The transfer of the house in 1972, when it was valued at $16,000, by defendant to himself and plaintiff, would constitute a gift to plaintiff of $8,000. Under Section 401(e)(3) of the Divorce Code, this property would be considered separate or non-marital property of the plaintiff except for the increase in value during the course of the marriage. The increase in value to date, also $8,000, of that one-half share would be marital property subject to equitable distribution. The original one-half share still owned by the defendant would remain his separate property. This approach was rejected by this court in Johnson v. Johnson, 109 Montg. Co. L.R. 383 (1981).

A second method of analysis which would result in an even more inequitable result is the “tracing” doctrine as expoused by the Oregon Court of Appeals in Marriage of Sagner, 49 Or. App. 215, 619 P.2d 660 (1980), which entails awarding the value of the property at the date of transfer to joint tenancy to the spouse who brought such property into the marriage. The other spouse would share only in the appreciation or increase in value during the marriage but subsequent to the transfer.

Under this analysis, the property interest in the instant case in the amount of $16,000 at the time of transfer would be considered the separate property of the defendant with plaintiff only being able to share in the appreciation value of $16,000 between that date and these proceedings. This approach was also rejected by this court in Johnson v. Johnson, supra.

[584]*584The best approach is the view that the transfer of title from one spouse to both spouses as tenants by the entireties constitutes a gift of the property as a whole to the marital entity. This analysis has been followed in the jurisdictions of Colorado, Missouri, Maine, and Illinois, In re Marriage of Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975); Conrad v. Bowers, 533 S.W. 2d 614 (Mo. App. 1975); Carter v. Carter, 419 A.2d 1018 (Me. 1980); In re Marriage of Rogers, 85 Ill. 2d 217, 52 Ill. Dec. 633, 422 N.E. 2d 635 (1981).

In Carter, where the marital house was titled jointly and the house had been almost entirely contributed by the husband, the court held that the home was a marital asset subject to equitable distribution absent convincing evidence to the contrary. In so holding, the Supreme Court of Maine stated that the gift exception to the definition of marital property does not apply to a transfer during marriage from one spouse to both spouses jointly. Carter, 419 A.2d 1022; see also Johnson, 109 Montg. Co. L.R. at 388.

In light of Johnson and Carter, this court holds that placing the marital residence in joint names creates a gift to the marital estate absent clear and convincing evidence to the contrary.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harvey, C. v. Harvey, R.
167 A.3d 6 (Superior Court of Pennsylvania, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
28 Pa. D. & C.3d 579, 1982 Pa. Dist. & Cnty. Dec. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burry-v-burry-pactcomplmontgo-1982.