Spears v. Spears

769 A.2d 523, 2001 Pa. Super. 61, 2001 Pa. Super. LEXIS 192
CourtSuperior Court of Pennsylvania
DecidedFebruary 26, 2001
StatusPublished
Cited by6 cases

This text of 769 A.2d 523 (Spears v. Spears) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spears v. Spears, 769 A.2d 523, 2001 Pa. Super. 61, 2001 Pa. Super. LEXIS 192 (Pa. Ct. App. 2001).

Opinions

TODD, J.:

¶ 1 Johnny W. Spears (“Husband”) appeals the February 16, 2000 Order of the Beaver County Court of Common Pleas in which the court concluded that he and his former wife, Grace E. Spears (ICWife”), were owners of equal one-half shares of real property located at 216 Park Road, Beaver County, Pennsylvania (the “Property”), and directed the partition of the Property. For the reasons set forth below, we reverse and remand.

¶ 2 The relevant facts may be summarized as follows. On December 19, 1967, at which time they were married and living together, Husband and Wife purchased the Property for $18,000. There was a mortgage on the Property in the amount of [524]*524$16,200. In November 1969, the parties separated and Wife voluntarily left the residence. The parties were divorced on September 20, 1974, at which time they became owners of equal one-half shares of the Property as tenants in common by operation of law.1 Since the parties’ separation in 1969, Husband has maintained exclusive possession of the Property, either as resident or landlord. During this time, Husband paid off the mortgage, and paid all taxes, insurance premiums, and maintenance costs for the Property.

¶3 On April 22, 1998, Wife filed an action for partition of the Property. Thereafter, Husband filed an action for contribution against Wife, seeking reimbursement for a portion of the maintenance costs he had incurred. Wife then filed a counterclaim for back rent. On October 29, 1999, the trial court consolidated the two cases for trial. On February 15, 2000, the trial court held a hearing to determine whether it should direct partition of the Property. At the hearing, Husband alleged, inter alia, that Wife had been divested of her interest in the Property by way of Husband’s adverse possession. The trial court ruled, however, that the theory of adverse possession could not be used to defeat Wife’s ownership rights in the Property under 28 Pa.C.S.A. § 8507(a).

¶4 The sole issue presented for this Court’s review, as recited in Husband’s Statement of Questions Involved, is “[w]hether the lower court erred or abused its discretion in directing partition under 23 Pa.C.S.A. § 3507(a) by deciding as a matter of law that Johnny Spears does not have standing to raise the affirmative defense of adverse possession because § 3507(a) provides each cotenant [sic] with an absolute right to partition.” (Appellant’s Brief at 2.)

¶5 This Court recognizes that “[t]he scope of appellate review of a decree in equity is limited. Absent an abuse of discretion or an error of law, we are bound to accept the findings of the trial court or master.” Werner v. Werner, 393 Pa.Super. 125, 573 A.2d 1119, 1121 (1990). After thorough review, we conclude the learned trial court erred as a matter of law in precluding Husband’s use of an adverse possession defense.

¶ 6 In its opinion, the trial court correctly set forth the section of the Divorce Code which provides a former spouse with the right to partition property previously held as tenants by the entireties:

(a) General rule. — Whenever married persons holding property as tenants by the entireties are divorced, they shall, except as otherwise provided by an order made under this chapter, thereafter hold the property as tenants in common of equal one-half shares in value, and either of them may bring an action against the other to have the property sold and the proceeds divided between them.

23 Pa.C.S.A. § 3507(a).

¶ 7 The trial court then cites, as support for its holding that Husband could not assert the defense of adverse possession, the case of Werner, supra, which “presented a factual situation virtually identical to that in the case at bar. Superior Court affirmed an order directing partition.” (Trial Court Opinion, 2/16/00, at 3.) The trial court further opined that the cases cited by Husband for the proposition that the theory of adverse possession is an affirmative defense to a partition action [525]*525were inapplicable because they did not involve disputes between tenants in common that were formerly husband and wife. Because we find Werner to be distinguishable, we find the trial court’s reliance thereon misplaced.

¶ 8 In Werner, the parties purchased property in October 1956, when they were husband and wife. In 1959, the wife vacated the property, but the husband continued to occupy the premises and remained in possession thereof until at least 1986. The parties were divorced in December 1963 and in May 1984, the wife filed an action seeking partition of the property pursuant to what was then 68 P.S. § 501. The husband counterclaimed for repayment of maintenance costs, taxes, insurance and mortgage payments. Wife then asserted, in new matter, that the rental income received by the husband for the property offset the expenses incurred by him and that, under 68 P.S. § 503, only hens of record could be deducted from the proceeds of a partition sale. Following a hearing, the master recommended that the wife’s request for partition be granted, and found that the husband’s claim for contribution was offset by the wife’s claim for rental income. The trial court dismissed the husband’s exceptions and ordered partition of the property.

¶ 9 On appeal, the husband first claimed that the trial court erred in failing to find the wife’s claim for partition barred by the statute of limitations and the doctrine of laches. The husband also claimed, for the first time, that the trial court erred in ruling on the issue of the parties’ respective liabilities as to contribution for expenses and rental income. With respect to the husband’s first claim, this Court stated:

Appellant claims that the trial court and master erred in failing to find that ap-pellee’s claim for partition was barred by the statute of limitations and the doctrine of laches. Appellee responds that appellant waived these defenses by failing to raise the defenses in his New Matter. Pennsylvania Rule of Civil Procedure 1030 requires that all affirmative defenses, including the defenses of lach-es and statute of limitations, be pleaded in a responsive pleading under the heading “New Matter.” A review of the pleadings shows that appellant did not raise these defenses in his New Matter. Failure to plead an affirmative defense in compliance with Rule 1030 results in waiver of the defense. We find that appellant has waived the statute of limitations and laches defenses.

Werner, 573 A.2d at 1121 (citations omitted).

¶ 10 Based on our reading of the language quoted above, we cannot conclude that this Court intended to preclude, in all cases, the assertion of the defense of adverse possession. Initially, we note that in Werner this Court did not address the specific defense of adverse possession, but only the affirmative defenses of laches and the statute of limitations. Secondly, this Court concluded only that the husband in Werner had waived those defenses by failing to raise them in his New Matter as required under Rule 1030, not that these defenses were unavailable.

¶ 11 With regard to the second issue raised by the husband in Werner, this Court acknowledged that there existed a conflict between 68 P.S. § 5032 and Rule [526]*5261570 of the Pennsylvania Rules of Civil Procedure,3

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Spears v. Spears
769 A.2d 523 (Superior Court of Pennsylvania, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
769 A.2d 523, 2001 Pa. Super. 61, 2001 Pa. Super. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spears-v-spears-pasuperct-2001.