Wall v. Wall , 24 N.C. App. 725 ( 1975 )

212 S.E.2d 238 (1975) 24 N.C. App. 725

James Carl WALL
v.
Sarah King WALL.

No. 7410SC905.

Court of Appeals of North Carolina.

March 5, 1975. Certiorari Denied May 6, 1975.

Kimzey, Mackie & Smith by Stephen T. Smith, Raleigh, for plaintiff-appellee.

Thomas S. Erwin, Raleigh, for defendant-appellant.

Certiorari Denied by Supreme Court May 6, 1975.

HEDRICK, Judge.

The pleadings raise only the question of how the proceeds of the partition sale of the property shall be divided between the tenants in common. In his petition the plaintiff alleged that the property was subject to a judgment dated 26 November 1973, recorded in Docket Book 27, page 76. The defendant denied this allegation. Nothing further appears in the record regarding the judgment described in the petition. However, the trial judge incorporated by reference in his findings of fact a judgment entered by Judge Hobgood dated 26 November 1973 in Case No. 72 CVS 9198 between the same parties and concluded that:

"The plaintiff is entitled to have defendant make a payment of Seven Hundred Twenty-Eight and 63/100 Dollars ($728.63) toward a reduction of the balance due on the note and deed of trust prior to the sale at partition, or a credit in that sum from the proceeds of the sale pursuant to the judgment herein referred to by Hobgood, J. in 72 CVS 9198."

The effect of this conclusion was to declare that the judgment described in the findings of fact was a lien on defendant's interest in the property. It may be that the judgment referred to in the findings of fact is a lien against the property in question, but there is simply nothing in the record to support such a conclusion. Moreover, it may be that the property in question is subject to a judgment described in the petition (Docket Book 27, page 76), but this allegation was denied by defendant and the question thereby raised has not been determined and could not be determined from the record presented to Judge Bailey. Therefore, summary judgment for plaintiff charging defendant's share of the proceeds from the partition sale of the property, $728.63, pursuant to the judgment of Hobgood described in the findings of fact, was not appropriate; and that portion of the order must be vacated and the proceeding remanded to the superior court for a determination of to what extent, if any, the property in question is subject to a judgment as described in the petition.

We note the error discussed above might have been avoided if the trial judge, rather than undertaking to find facts to support his conclusions of law, had determined the plaintiff's motion for summary judgment on the record presented to him. We point out again that it is not necessary for the trial judge in passing on motions for summary judgment to make findings of fact. The following, from General Teamsters, Chauffeurs & Helpers U. v. Blue Cab Co., 353 F.2d 687, 689 (7th Cir. 1965), may be instructive:

"The making of additional specific findings and separate conclusions on a motion for summary judgment is ill advised since it would carry an unwarranted implication that a fact question was presented."

With respect to defendant's counterclaim for reimbursement of sums paid on notes secured by deeds of trust encumbering the property in question, the defendant assigns as error the court's conclusion that:

"As a matter of law, neither the plaintiff nor the defendant owning property as a tenancy by the entirety prior to their divorce are entitled to any reimbursement for payments on the mortgage or for other benefits to the property during their marriage."

Citing Roberts v. Barlowe, 260 N.C. 239, 132 S.E.2d 483 (1963) and Henson v. Henson, 236 N.C. 429, 72 S.E.2d 873 (1952), defendant contends she is entitled to a hearing on her equitable counterclaim for reimbursement of sums paid by her out of her personal funds during her marriage to the plaintiff on the indebtedness secured by deeds of trust on the property owned by them as tenants by the entirety.

The cases cited by the defendant stand for the proposition that once an estate by the entirety has been dissolved by decree of absolute divorce and the husband and wife become owners of the property as tenants in common, either party in answer to a petition for partition is entitled to a hearing on his or her equitable claim for reimbursement for funds expended as a tenant in common toward the reduction of an encumbrance on the common property.

The general rule is that upon divorce the two former spouses become equal cotenants even though one of the former spouses paid the entire purchase price. Each spouse is entitled to an undivided one-half interest in the property and is entitled to partition the property. However, expenditures for the property after the final decree of absolute divorce are treated as they normally would be in a tenancy in common. 2 Lee, North Carolina Family Law § 120 (1963); 4A Powell, Law of Real Property § 624 (1974); 27A C.J.S. Divorce § 180 (1959).

In the present case, defendant's counterclaim for reimbursement includes sums allegedly paid by her on the indebtedness while she and the plaintiff owned the property as tenants by the entirety and while they owned the property as tenants in common. The stipulation between the parties supports the decree that the defendant must be given credit for all sums paid by her on the indebtedness after the judgment of absolute divorce. An estate by the entirety is a form of co-ownership of real property by a husband and wife in which each is deemed to be seized of the entire estate, with neither spouse having a separate or undivided interest therein. Davis v. Bass, 188 N.C. 200, 124 S.E. 566 (1924); 2 Lee, North Carolina Family Law § 112 (1963). Thus, because of the nature of the estate by the entirety, we are of the opinion that the trial court correctly concluded that the defendant was not entitled to be reimbursed for sums paid on the indebtedness encumbering such an estate during her marriage to the plaintiff. This decision makes it unnecessary for us to discuss whether the judgment referred to in the findings of fact is res judicata as to this portion of the defendant's alleged counterclaim.

Therefore, summary judgment for plaintiff, in effect an order allowing plaintiff's motion to dismiss defendant's counterclaim for reimbursement of sums paid on the indebtedness during the marriage, pursuant to Rule 12(b)(6) for failure to state a claim for which relief could be had, must be affirmed.

The result is: that portion of the judgment ordering the sale of the property for partition and dismissing defendant's counterclaim to be reimbursed money paid by her during her marriage to the plaintiff is affirmed; that portion of the judgment decreeing that credit be given to defendant for any sums paid on the deeds of trust encumbering the property since 6 February 1974 (date of judgment of final divorce) is affirmed; that portion of the judgment decreeing that plaintiff is entitled to $728.63 credit pursuant to the judgment of Hobgood entered in 72 CVS 9198 is vacated.

The proceeding is remanded to the superior court to determine to what extent, if any, the property in question is subject to a judgment as described in the petition. Upon remand, the trial court will also determine the exact amount of money paid by the defendant upon the indebtedness encumbering the property after she and the plaintiff were divorced.

Affirmed in part; vacated and remanded in part.

MORRIS and PARKER, JJ., concur.