Wehrheim v. Brent

894 S.W.2d 227, 1995 Mo. App. LEXIS 396, 1995 WL 90439
CourtMissouri Court of Appeals
DecidedMarch 7, 1995
DocketNo. 65487
StatusPublished
Cited by8 cases

This text of 894 S.W.2d 227 (Wehrheim v. Brent) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wehrheim v. Brent, 894 S.W.2d 227, 1995 Mo. App. LEXIS 396, 1995 WL 90439 (Mo. Ct. App. 1995).

Opinion

SIMON, Judge.

Plaintiff Delbert Wehrheim appeals from the trial court’s grant of motions by defendants Wayne A. Brent (Wayne Brent) and Barbara A. Brent (Barbara Brent), husband and wife, to quash plaintiff’s Application for Charging Order (application) against Wayne Brent’s interest in Brown-Brent & Associates, a Missouri general partnership. Plaintiff’s sole point on appeal is that the trial court erred in quashing his application because Wayne Brent holds his interest in Brown-Brent & Associates (partnership) as a tenant in partnership rather than in a tenancy by the entireties, making the interest subject to being charged to satisfy a default judgment plaintiff secured against Wayne Brent. We affirm.

The facts are not in dispute. Wayne and Barbara Brent, along with two other married couples, entered into a partnership agreement on September 3, 1980, forming “Brown-Brent-Hanes & Associates.” The agreement stated that it was

made and entered into ... by and among J.J. BROWN and NETTIE BROWN, his wife, as tenants by the entireties (“Brown”); WAYNE A. BRENT and BARBARA A. BRENT, his wife, as tenants by the entireties (“Brent”); and C.O. HANES and LUELLA E. HANES, his wife, as tenants by the entireties (“Hanes”)....

The Browns and the Brents later purchased the partnership interest of the Hanes-es, and on November 4, 1983, the two remaining couples executed an amended partnership agreement, which, like the original agreement, expressly stated that the interests were taken by the couples as tenants by the entireties. Both agreements also expressly divided profits and losses to the participating couples as tenants by the entire-ties.

On January 30, 1992, plaintiff secured a default judgment against Wayne Brent for $13,366.40. Plaintiff filed his application to charge Wayne Brent’s interest in the partnership on November 10, 1993, alleging that he was unable to discover any assets of Wayne Brent and that the charging order was necessary to prevent Wayne Brent from “secret[ing] any such assets he may have, including assets of [the] partnership.” Wayne Brent responded with a motion to quash plaintiffs application on December 6, 1993, on the ground that his partnership interest was held in a tenancy by the entire-ties with Barbara Brent. On December 7, 1993, Barbara Brent filed a motion to intervene in the matter, along with her motion to quash plaintiffs application. Subsequently, the trial court granted Barbara Brent’s motion to intervene and sustained her motion to quash the application. This appeal followed.

Plaintiff argues on appeal that Wayne Brent is a tenant in partnership with the other partners, including Barbara Brent, and that the charging order therefore is authorized by § 358.240, R.S.Mo.1986 (all further references to this section shall be to R.S.Mo. 1986). In essence, plaintiffs position is that the partnership in its present amended form is owned by the Browns and Brents as four individuals rather than as two couples.

The primary criterion to be applied in determining whether a partnership has been created is the intention of the parties. Stein v. Jung, 492 S.W.2d 139, 144[6] (Mo.App.1973). While the parties here do not dispute the existence of the partnership, the nature of it is in dispute. The intention of the Brents clearly was to hold their interest in the partnership as tenants by the entireties. Both the original and the amended agreements identify the Brents’ interest as being held by the entireties, and the clause regarding allocation of profits and losses also refers to the Brents as tenants by the entireties.

Where property is owned in tenancy by the entireties, each spouse is seized of [229]*229the whole or entirety and not of a share or divisible part. Stafford v. McCarthy, 825 S.W.2d 650, 656[4] (Mo.App.1992). Each spouse owns an undivided interest in the whole of the property and no separate interest. Id. An execution arising from a judgment against one spouse alone cannot affect property held by a husband and wife as tenants by the entireties. Edgar v. Ruma, 823 S.W.2d 59, 61[1] (Mo.App.1991). In Missouri, an estate by the entireties may exist in personal as well as real property. In re Estate of Morton, 822 S.W.2d 456, 459[6] (Mo.App.1991). A partner’s interest in a partnership is personal property. § 358.260, R.S.Mo. 1994. Therefore, it follows that a partnership interest may be held in a tenancy by the entireties.

We find nothing in § 358.240, nor anywhere else in the Uniform Partnership Act (UPA), to suggest that our legislature, in adopting the UPA, intended to abrogate the principle of tenancy by the entireties. The parties have not directed us to any Missouri cases holding that a partnership interest may be held in a tenancy by the entireties, nor has our research revealed any such cases. However, courts in several other states that recognize such tenancies have concluded that a partnership interest may be held by the entireties.

In M. Lit, Inc. v. Berger, 225 Md. 241, 170 A.2d 303 (1961), the court found that the Bergers, husband and wife, owned a share in a tavern as tenants by the entireties rather than as partners. It relied largely on the conduct of the couple regarding the business and the language of an agreement to sell the tavern, particularly the facts that the couple identified themselves jointly as one party in the agreement and that they always considered themselves and held themselves out as owning one undivided interest in the tavern. Id. 107 A.2d at 306[4-5]. Likewise, by their affidavits and by the language of their partnership agreement, the Brents always have considered themselves owning one undivided interest, and the agreement itself consistently refers to them as tenants by the entireties.

The District Court of Appeal of Florida examined this issue in the context of an equitable proceeding in which a wife sought to recover partnership profits drained by her husband, cotenant by the entireties. Lacker v. Zuern, 109 So.2d 180 (Fla.Dist.Ct.App.1959). The Lacker court expressly recognized that a partnership interest could be held by the entireties when it found that “the partnership could be dissolved without terminating the estate by the entirety existing as to the parties’ joint interest.” Id. at 182. Moreover, in reaching its conclusion, the Lacker court relied on a partnership agreement similar to the one before us, identifying the owners as two couples, each with an undivided one-half interest in the business as tenants by the entireties. Id. at 181.

Two other cases reach the conclusion that a partnership interest held by a husband or wife may be charged by a judgment creditor, but they are distinguishable. In Widder v. Leeds, 317 A.2d 32 (Del.Ch.1974), Leeds moved the court to vacate a sequestration order that attached a limited partnership interest that was recorded in his name only. He argued that the interest actually was owned by him and his wife as tenants by the entireties because he purchased the interest with funds derived from securities owned by them jointly. Id. at 35-36.

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Bluebook (online)
894 S.W.2d 227, 1995 Mo. App. LEXIS 396, 1995 WL 90439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wehrheim-v-brent-moctapp-1995.