subject: North Carolina Absolute Divorce Property Equitable Distribution Separation Lawyers Attorneys [print this page] EARL F. BRANSTETTER v. MAJORIE F. BRANSTETTER
COURT OF APPEALS OF NORTH CAROLINA
April 26, 1978, Heard in the Court of Appeals
June 6, 1978, Filed
Plaintiff filed this action for divorce on 17 March 1976. Defendant answered, admitting the allegations and joined in the request for divorce. She also filed a counterclaim alleging that the parties owned certain property as tenants by entirety; and that while occupying the property under a separation agreement, she had made improvements and repairs for which she was entitled to an accounting. Plaintiff filed a reply to the counterclaim denying that defendant was entitled to an accounting and stating that he was entitled to an accounting for a reasonable amount of certain rental income collected by defendant. On 14 September 1976, plaintiff moved for summary judgment with respect to defendant's counterclaim on the grounds that the parties had executed a deed of separation which defendant acknowledged in her answer and which constituted a termination of any rights she might have had arising out of the marriage. Defendant responded to the summary judgment motion with an affidavit which paralleled and elaborated upon her prior pleadings. The court granted plaintiff's motion for summary judgment, ruling that the land was owned by the parties as tenants by the entirety and that there was no genuine issue arising for trial. The court dismissed defendant's counterclaim and she appealed.
Issues:
Can the separation agreement alter the parties' interest in the property?
Whether the Defendant was entitled to an accounting for improvements she made to property, owned by the parties as tenants by the entirety?
The Court states that the tenancy by the entirety may be terminated by a voluntary partition between the husband and the wife whereby they execute a joint instrument conveying the land to themselves as tenants in common or in severalty. But neither party is entitled to a compulsory partition to sever the tenancy. In this case the separation agreement provides that ". . . nothing in this Agreement shall affect the rights, title or interest that the respective parties have in and to all of the real estate held as an estate by the entireties." This statement clearly indicates that neither party intended to alter by contract the manner in which they held title to the property, but that they should hold the real estate as tenants by the entirety until an absolute divorce terminated the tenancy. Since the property was held by the parties as tenants by the entirety, they are entitled to an equal division of the property upon termination of the estate by absolute divorce and neither party is entitled to an accounting for expenditures made on the property while the tenancy by the entirety existed.
It is clear that no tenancy in common was created until after the absolute divorce, therefore, there was no basis for apportioning the shares of the property based on expenditures made prior to the termination of the tenancy by the entirety. Since there was not an actual conveyance between the parties, and the separation agreement clearly states that the tenancy by the entirety property was not to be affected by the contract, the Wall rule governing the division of tenancy by the entirety property governs rather than the rules governing reimbursements on tenancy in common property.
In this case, the improvements to the property were made several years after the conveyance of the property; therefore, the doctrine of purchase money resulting trusts is inapplicable.
Conclusion:
Hence this Court concludes that summary judgment for plaintiff was properly granted and defendant was not entitled to reimbursement for the improvements which she made to the property while the parties owned the property as tenants by the entirety.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Absolute Divorce Property Equitable Distribution Separation Lawyers Attorneys
By: Atchuthan Sriskandarajah
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