Jacobs, G. v. Stephens, T.

J-S43014-18
2019 Pa. Super. 32
GINA K. JACOBS, FORMERLY KNOWN AS IN THE SUPERIOR COURT
GINA K. STEPHENS OF PENNSYLVANIA
Appellant
v.
TIMOTHY L. STEPHENS
Appellee No. 1697 WDA 2017
Appeal from the Order entered October 16, 2017
In the Court of Common Pleas of Venango County
Civil Division at No: 872-2015
____________________________________________________________
GINA K. JACOBS, FORMERLY KNOWN AS IN THE SUPERIOR COURT
GINA K. STEPHENS OF PENNSYLVANIA
Appellant
v.
TIMOTHY L. STEPHENS
Appellee No. 1698 WDA 2017
Appeal from the Order entered November 1, 2017
In the Court of Common Pleas of Venango County
Civil Division at No: 872-2015
J-S43014-18
____________________________________________________________
GINA K. JACOBS, FORMERLY KNOWN AS IN THE SUPERIOR COURT
GINA K. STEPHENS, OF PENNSYLVANIA
Appellee
v.
TIMOTHY L. STEPHENS
Appellant No. 1770 WDA 2017
Appeal from the Order entered October 16, 2017
In the Court of Common Pleas of Venango County
Civil Division at No: 872-2015
BEFORE: STABILE, DUBOW AND NICHOLS, JJ.
OPINION BY STABILE, J.: FILED FEBRUARY 8, 2019
In these consolidated appeals, Gina K. Jacobs and Timothy L. Stephens
cross-appeal from an order finding that the parties owned a property as
tenants in common, directing partition of the property, and awarding
$27,726.73 to Jacobs. We affirm the portion of the order finding that the
parties own the property as tenants in common and directing partition of the
property in equal shares. We vacate the order in all other respects, and quash
these appeals in all other respects, because the trial court lacked jurisdiction
to decide any other issues under our recent decision in Kapcsos v. Benshoff,
194 A.3d 139 (Pa. Super. 2018) (en banc).
The history of this case begins with Stephens’ prior marriage to an
individual named Kim Schwab. In January 2001, Stephens and Schwab held
a wedding ceremony in Jamaica. At the time of their wedding, Stephens
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believed that their marriage was legal. Later that year, Stephens purchased
a residential property at 174 Carey Lane in Cranberry Township. Stephens
paid for the property entirely with his own money, and the deed did not list
Schwab as an owner due to her poor credit. Stephens and Schwab separated
in 2002, and there were no divorce proceedings. In 2005, Schwab married
another man.
Stephens and Jacobs met in July 2009, and they married on September
11, 2009. Before they married, Stephens told Jacobs that he previously had
a wedding ceremony in Jamaica, but he had consulted an attorney and did not
believe that the Jamaican marriage was valid.
On September 19, 2009, Stephens and Jacobs executed a deed
conveying the property at 174 Carey Lane from themselves, as “husband and
wife,” to themselves as “tenants by the entireties.” On August 6, 2013,
Stephens and Jacobs separated. On February 7, 2014, the trial court annulled
their marriage, finding that Stephens’ Jamaican marriage to Schwab was valid
and that Stephens had failed to divorce Schwab.
On July 17, 2015, Jacobs filed a complaint seeking partition of the Carey
Lane property and an award of reasonable rental value of the property from
the date of separation onward. Stephens filed a counterclaim seeking
reimbursement for various expenditures on the property, including repairs for
the garage and kitchen, payments on a roof loan, and payment of real estate
taxes and homeowner’s insurance premiums.
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On October 16, 2017, following a non-jury trial, the trial court entered
an order finding that the parties held the property as tenants in common. The
court directed partition of the property. Further, the court determined that
Stephens had been in sole possession of the property since the date of
separation, the value of the property was $145,000.00, and the value of each
party’s share was fifty percent of the total value, or $72,500.00. The court
credited Stephens with $44,773.77 in payments for repairs to the premises,
real estate taxes, and homeowners’ insurance premiums. After subtracting
this credit from Jacobs’ one-half share of the value of the premises, the court
entered an order in Jacobs’ favor in the amount of $27,726.23.
On October 19, 2017, Jacobs filed post-trial motions. Stephens did not
file post-trial motions. On October 30, 2017, Stephens filed a motion to strike
or dismiss Jacobs’ post-trial motions on the ground that Pa.R.Civ.P. 1557 did
not permit exceptions to an order directing partition. On November 1, 2017,
the trial court dismissed Jacobs’ post-trial motions on the ground that she
“[could] not file a motion for post-trial relief in response to an order directing
partition.” Order, 11/1/17, at 1.
On November 13, 2017, Jacobs filed notices of appeal from the October
16, 2017 and November 1, 2017 orders at 1697 and 1698 WDA 2017,
respectively. On November 27, 2017, Stephens filed a notice of appeal from
the October 16, 2017 order at 1770 WDA 2017. Both parties and the court
complied with Pa.R.A.P. 1925. Jacobs subsequently filed a praecipe to reduce
the October 16, 2017 order to judgment.
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In Jacobs’ appeals at 1697 and 1698 WDA 2017, she raises four
questions that we reorganize for the sake of convenience:
1. Did the trial court err in giving [Stephens] credit for the
payment of real estate taxes in the sum of $8,352.39 and credit
for the payment of homeowners’ insurance premiums in the
amount of $3,779.48?
2. Did the trial court err as a matter of law or abuse its discretion
in failing and/or refusing to award [Jacobs] for her fair and
reasonable rental value claim, in the amount of $325.00 per
month, plus utilities from August 6, 2013 through October 16,
2017 and monthly thereafter, when the evidence was clear and
uncontroverted that [Jacobs] was not in possession of the
premises and [Stephens] enjoyed exclusive possession of the
subject premises at all times relevant to the claim?
3. Did the trial court err in its November 1, 2017 [order] in
granting [Stephens’] motion to strike/dismiss [Jacobs’] motion for
post-trial relief without conducting a hearing on [Jacobs’] motion?
4. Did [Stephens’] failure to file a post-trial motion for relief
constitute a waiver of all of the issues in his cross-appeal?
Jacobs’ Brief at xi-xii (some capitalization omitted).
Stephens raises three issues in his cross-appeal at 1770 WDA 2017:
1. Given that the sole reason for the transfer of the subject
property from [] Stephens to [] Stephens and [] Jacobs was the
erroneous belief that the [p]arties were legally married, did the
trial court err when it failed to find said transfer was void under
the law of restitution and unjust enrichment, conditional gift, [or]
gift made in reliance on a relation?
2. Did the trial court err when it failed to credit [] Stephens, as an
offset to partition, the amount expended by him for the initial
purchase price of the subject property?
3. Did the trial court err when it failed to credit [] Stephens, as an
offset to partition, the value of the labor expended by him for the
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necessary repairs, maintenance and preservation of the subject
property?
Stephens’ Brief at 23-24 (some capitalization omitted).
We must first consider sua sponte whether the trial court possessed
jurisdiction to enter the October 16, 2017 order. Turner Const. v. Plumbers
Local 690, 130 A.3d 47, 63 (Pa. Super. 2015) (“[W]e can raise the issue of
jurisdiction sua sponte”). “[A]s a pure question of law, the standard of review
in determining whether a trial court has subject matter jurisdiction is de novo
and the scope of review is plenary.” S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa.
Super. 2014) (internal alteration, quotation marks, and citation omitted). In
accordance with Kapcsos, we hold that the trial court’s jurisdiction was
limited to deciding whether the property was subject to partition and
identifying the nature and extent of Jacobs’ and Stephens’ interests in the
property. We quash the cross-appeals to the extent that they involve issues
falling outside these boundaries.
“Partition is a possessory action; its purpose and effect being to give to
each of a number of joint owners the possession [to which] he is entitled . . .
of his share in severalty . . . The rule is that the right to partition is an incident
of a tenancy in common, and an absolute right.” Lombardo v. DeMarco,
504 A.2d 1256, 1260 (Pa. Super. 1985). “The purpose of partition is to afford
those individuals who no longer wish to be owners the opportunity to divest
themselves for a fair compensation.” Russo v. Poliduro, 176 A.3d 326, 329
(Pa. Super. 2017). Any one or more co-tenants may bring an action for
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partition, and all other co-tenants must be joined as defendants. Pa.R.Civ.P.
1553.
Kapcsos describes the law of partition procedure as follows:
Pennsylvania Rules of Civil Procedure 1551–1574 split a partition
action into two, distinct, chronological parts. Rules 1551–1557
govern Part 1, and Rules 1558–1574 govern Part 2. Each part, by
rule, must produce its own, distinct, appealable order.
The first order, under Pa.R.Civ.P. 1557, directs partition of the
parties’ legal interests into severalty . . .
The second order, under Pa.R.Civ.P. 1570, does one of three
things. A Rule 1570 order may (1) divide the partitioned property
among the parties, (2) force one or more of the parties to sell
their interest in the land to one or more of the parties, or (3) sell
the land to the general public and distribute the proceeds among
the parties.
In Part 1, the court must determine whether the property is
partitionable under law. In other words, Part 1 is to ascertain:
I. Do the parties jointly own the real estate in
question?
II. If so, what fractional legal interests in the
property does each party hold?
The answers to these questions may be admitted in the pleadings,
or, if they are not, a hearing or jury trial may be needed. If the
trial court answers both questions and finds that the plaintiff has
established a right to partition, Rule 1557 dictates:
the court shall enter an order directing partition which
shall set forth the names of all the co-tenants and the
nature and extent of their interests in the property.
No exceptions may be filed to an order directing
partition.
Critically, any party may immediately appeal that order under
Pennsylvania Rule of Appellate Procedure 311(a)(7) (permitting
some interlocutory appeals as of right). After a Part 1 order of
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partition becomes final (either because no one appeals or an
appellate court affirms it), only then may parties proceed to Part
2, where the actual division, award, or sale of the partitioned
property occurs . . . .
Therefore, the entry and recording of a Part 1 order directing
partition is essential to terminate a joint tenancy. Following that,
Part 2 is purely an equitable proceeding where the trial judge or
master balances the equities to decide what form the partitioning
will take. If the property were a pie, the trial court must decide
how best to serve it to the parties.
Id., 194 A.3d at 141-43. At Part 2’s conclusion, the court must enter a
decision and order configured as follows:
(a) The decision shall include findings of fact as follows:
(1) whether the property is capable of division, without prejudice
to or spoiling the whole, into purparts proportionate in value to
the interests of the co-tenants;
(2) the number of purparts into which the property can be most
advantageously divided, if partition proportionate in value to the
interests of the parties cannot be made;
(3) the value of the entire property and of the purparts;
(4) the mortgages, liens and other encumbrances or charges
which affect the whole or any part of the property and the amount
due thereon;
(5) the credit which should be allowed or the charge which
should be made, in favor of or against any party because of
use and occupancy of the property, taxes, rents or other
amounts paid, services rendered, liabilities incurred or
benefits derived in connection therewith or therefrom;
(6) whether the interests of persons who have not appeared in
the action, or of defendants who have elected to retain their
shares together shall remain undivided;
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(7) whether the parties have accepted or rejected the allocation
of the purparts or bid therefor at private sale confined to the
parties; and
(8) whether a sale of the property or any purpart not confined to
the parties is required and if so, whether a private or public sale
will in its opinion yield the better price.
(b) The order shall include:
(1) an appropriate award of the property or purparts to the
parties subject to owelty where required;
(2) if owelty is required, the amount of the awards and
charges which shall be necessary to preserve the
respective interests of the parties, the purparts and parties
for or against which the same shall be charged, the time of
payment and the manner of securing the payments;
(3) the protection required for life tenants, unborn and
unascertained remaindermen, persons whose whereabouts are
unknown or other persons in interest with respect to the receipt
of any interest; and
(4) a public or private sale of the property or part thereof where
required.
Pa.R.C.P. 1570 (emphasis added).
Kapcsos was a partition action between two co-tenants, Kapcsos and
Benshoff. Instead of entering the Part 1 order required under Rule 1557, the
trial court skipped Part 1, moved directly to Part 2 proceedings, and
conditionally awarded the property to Kapcsos subject to (among other things)
payment of owelty to Benshoff. Benshoff appealed to this Court. An en banc
panel of this Court unanimously quashed the appeal, reasoning:
[A] Part 1 order must precede Part 2. [The] failure of the parties
to secure and record a Part 1 order partitioning the property
deprived the trial court of jurisdiction to conduct Part 2. If the
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property is never partitioned via a Part 1 order, the court has
nothing to divvy-up in Part 2, because the parties still own
undivided interests in the whole. A Part 1 order must first
disentangle their legal interests and extinguish rights of
survivorship. Also, recording a Part 1 order is absolutely
imperative to protect the various rights of the parties and their
heirs.
In conclusion, by not seeking a Part 1 order to divide their legal
interests in the property into severalty, the parties never
completed Part 1 of these proceedings. Thus, the Part 2 trial that
occurred and all relief that Mr. Kapcsos and Ms. Benshoff obtained
from it were “nullit[ies].” See Mischenko v. Gowton, [] 453
A.2d 658, 660 ([Pa. Super.] 1982). As a result, once the trial
judge partitions the joint property via a Part 1 order and the
Recorder of Deeds has recorded it, the parties must retry Part 2
de novo, where both parties may present any evidence of
monetary contributions as off-sets toward the owelty . . .
Until all of this occurs, we may not decide the merits of the case,
for the General Assembly has commanded that we “shall have
exclusive appellate jurisdiction of all appeals from final orders of
the courts of common pleas . . . .” 42 Pa.C.S.A. § 742 (emphasis
added). Because the appealed-from order is a legal nullity, it
cannot be a final order. Thus, this Court has no appellate
jurisdiction over such an order.
Id., 194 A.3d at 145.
The legal principles articulated in Kapcsos govern this case, although
the facts herein are slightly different. Here, unlike in Kapcsos, the trial court
did not skip over Part 1. Instead, it combined Part 1 and Part 2 proceedings
and entered a single order that: (a) the property was subject to partition in
equal shares to Jacobs and Stephens as tenants in common, a Part 1 ruling;
(b) the property’s real market value was $145,000.00, a Part 2 ruling; (c)
Stephens was entitled to $44,773.77 in credit, a Part 2 ruling; and (d)
subtraction of this credit from Jacobs’ one-half share of the value of the
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premises resulted in an award to Jacobs of $27,726.23, a Part 2 ruling. The
court only had jurisdiction to enter Part 1 rulings, not Part 2 rulings. Kapcsos,
at 145 (Part 2 trial and order were “nullities” because parties never completed
Part 1). Consequently, we only have jurisdiction to decide Part 1 arguments
in these appeals but not Part 2 arguments.
The first three arguments in Jacobs’ brief object to the amount of credit
awarded to Stephens for payment of real estate taxes and homeowners’
insurance, the trial court’s refusal to award Jacobs rent for Stephens’ exclusive
possession of the premises after the date of separation, and the trial court’s
denial of Jacobs’ post-trial motions relating to these issues. All of these are
Part 2 arguments concerning the “division of the pie.” Kapcsos, at 143 (in
Part 2, “if the property were a pie, the trial court must decide how best to
serve it to the parties”). Similarly, the final two arguments of Stephens’ brief
object to the court’s refusal to award him credit for the original purchase price
of the property and for the value of his labor to maintain the property. These,
too, are Part 2 arguments relating to the appropriate “division of the pie.” We
lack jurisdiction to decide any of these issues.
We do have jurisdiction, however, to address two Part 1 arguments
raised by the parties. First, Stephens’ first argument—his transfer of the
property to Jacobs was void due to the lack of a valid marriage—relates to the
Part 1 inquiry of whether the property “is partitionable.” Kapcsos, at 142.
Next, Jacobs’ fourth and final argument asserts that Stephens waived all
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issues in his cross-appeal by failing to file post-trial motions. We have
jurisdiction to address this to the extent it concerns Stephens’ Part 1 argument
that his transfer to Jacobs was void. We lack jurisdiction to address Jacobs’
fourth argument to the extent it concerns Stephens’ arguments on Part 2
subjects.1
Turning to the merits of the Part 1 arguments, the trial court rejected
Stephens’ argument that his September 19, 2009 transfer to Jacobs was void,
reasoning:
[I]n Pennsylvania, even if the parties transferring property
amongst one another are not legally married, a valid deed still
exists, as held in Thornton et al, v. Pierce et al., 194 A. 897
(Pa. 1937). See also Fredrick v. Southwick, 67 A.2d 802 (Pa.
Super. 1949). In Thornton, the plaintiff was married to her first
husband and lived with him until he abruptly deserted her . . .
Three years after he left, the plaintiff bought the property at issue
in the case exclusively with her own money. Having not heard
from her first husband for eleven years, plaintiff entered into a
marriage with the defendant to her subsequent action . . . Shortly
after her marriage to the defendant, a deed conveyed the property
the plaintiff had purchased to herself and the defendant, as
____________________________________________
1 We note that the parties timely filed their notices of appeal on the Part 1
issues. Jacobs timely appealed under Pa.R.A.P. 311(a)(7) on November 13,
2017, less than thirty days after the Part 1 determination that Jacobs and
Stephens were co-tenants who each held fifty percent interests in the
property. Pa.R.A.P. 903(a) (except in circumstances not relevant here, “the
notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken”). Stephens timely filed his cross-appeal
fourteen days after Jacobs’ appeals. Pa.R.A.P. 903(b) (except in
circumstances not relevant here, “if a timely notice of appeal is filed by a
party, any other party may file a notice of appeal within 14 days of the date
on which the first notice of appeal was served, or within the time otherwise
prescribed by this rule, whichever period last expires”).
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husband and wife, stating that “[t]he purpose of this deed is to
vest in the grantees named herein an estate by entireties.”
Five years later, the plaintiff’s first husband suddenly reappeared,
and the plaintiff went to live with him and subsequently procured
an annulment of her marriage to the defendant. Plaintiff also filed
the action that was the subject matter of Thornton, in which she
alleged that the instrument that deeded her and the defendant
the property at issue as tenants by entireties should be decreed
null and void, based upon the fact that they were never lawfully
married. In deciding the matter, the Pennsylvania Supreme Court
stated as follows:
It is true that tenancy by entireties is limited to the
case of a husband and wife, and therefore [plaintiff]
and [defendant] could hold title only as joint tenants
or tenants in common. But the fact that in this respect
the deed was ineffective did not wholly invalidate it,
nor prevent the grantees from receiving and holding
title under such form of tenancy as was appropriate
under the circumstances. In cases where
conveyances have been made to persons described as
husband and wife, because believed to be such by the
grantors and by themselves, it being either expressly
stated or impliedly intended that they were to take by
entireties, but where it was discovered that they were
not lawfully married and therefore could not hold
under such a tenancy, they have been allowed to take
the estate either as joint tenants or tenants in
common.
Id.
As noted in Thornton above, a deed that fails to deliver property
to two persons as tenants by the entirety, based on the false belief
that they are legally married, is not void. But rather, it still acts
as a valid deed in that they receive interests in the property as
either joint tenants or tenants in common.
Trial Court Op., 2/12/18, at 14-15.
We agree with this analysis and add several observations. Thornton
held that when a deed purports to convey property to tenants by the
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entireties, but the parties are not actually married, the deed is ineffective to
create a tenancy by the entireties. Id., 194 A. at 899. The deed, however,
does not necessarily become a nullity, “there being no reason why the
grantees, like any other two persons, cannot take title in some form of dual
ownership appropriate under the circumstances.” Maxwell v. Saylor, 58
A.2d 355, 356 (Pa. 1948) (citing Thornton). “The appropriate form of
tenancy is to be determined by the intention of the parties, the ultimate guide
by which all deeds must be interpreted.” Riccelli v. Forcenito, 595 A.2d
1322, 1325 (Pa. Super. 1991) (citations omitted) (although purchasers who
were not married could not take title to property as tenants by entireties,
evidence showed they intended to create right of survivorship, and thus, they
held estate as joint tenants with right of survivorship; language in deed, which
included form of estate taken, “tenants by the entireties,” was sufficiently
specific to create survivorship rights); see also Teacher v. Kijurina, 76 A.2d
197, 202 (Pa. 1950) (where no language evidencing intent to create
survivorship interest, i.e., no language indicating form of estate, appeared in
deeds, deed operated to convey estate of tenancy in common); Estate of
Bruce, 538 A.2d 923 (Pa. Super. 1988) (deeds conveying property to grantee
and his “wife,” where grantee and “wife” were not actually married, did not
create joint tenancy with right of survivorship but rather tenancy in common,
where deed did not express form of estate and clear expression of intent to
include right of survivorship was thus lacking); DeLoatch v. Murphy, 535
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A.2d 146, 149 (Pa. Super. 1987) (deed naming plaintiff, who was married to
another, and defendant, with whom plaintiff was living at the time, as tenants
by the entireties created joint tenancy with right of survivorship).
The trial court made clear that it found Stephens honestly but
mistakenly believed that his first marriage to Schwab was invalid, and that
the parties intended to convey the property to Stephens and Jacobs as tenants
by the entireties. Trial Ct. Op., at 14-15. While the deed was ineffective to
create a tenancy by the entireties, see Thornton, it did signify the parties’
intent to convey some interest in the property to Jacobs. The trial court
enforced the parties’ intent by concluding that Jacobs obtained title as a tenant
in common.
Stephens contends that the deed is void under our decision in Estate
of Sacchetti v. Sacchetti, 128 A.3d 273 (Pa. Super. 2015), but we find
Sacchetti distinguishable. There, Mario Sacchetti married Linda Sacchetti
unaware that Linda was already married to another man. Mario bequeathed
his residence to Linda in his will and executed a deed conveying his residence
to himself and Linda. Two years later, Mario died. His executor filed a
declaratory judgment action demanding that Linda return the residence to
Mario’s estate. The Orphans’ Court ruled in favor of the estate. This Court
affirmed, holding that Linda procured the deed by fraud and
presented no proof that Mario would have bestowed on her
survivorship rights to his property if he had known that she
fraudulently induced him to marry her and would not perform her
marital obligations. The evidence clearly established that Mario
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did not know that [Linda] was married to Mr. Kai when he married
her. In addition, [Linda] fraudulently induced Mario into believing
that, in return for [the residence] and $25,000, she would provide
companionship and cook and clean for him during what was
intended to be a marriage of short duration, given Mario’s
advanced age, heart problems, and diabetes.
Id., 128 A.3d at 287. In contrast to Sacchetti, neither party in this case
acted fraudulently. Both parties executed the deed under the honest but
mistaken assumption that Stephens’ prior marriage was invalid. Since both
parties intended for Jacobs to obtain an ownership interest in the property, it
would be improper to proclaim the deed void.
Further, we reject Jacobs’ argument that Stephens waived his Part 1
argument by failing to file exceptions to the October 16, 2017 order’s directive
to partition the property. Pa.R.Civ.P. 1557 barred Stephens from filing post-
trial motions on this issue. See id. (“No exceptions may be filed to an order
directing partition”). Stephens’ only recourse was to take a timely appeal,
which he did.
Accordingly, we affirm the October 16, 2017 order to the extent it
concerns Part 1 of this case, i.e., to the extent it holds that Stephens and
Jacobs own the property as tenants in common and directs partition of the
property. We vacate the October 16, 2017 order to the extent it disposes of
Part 2 issues and quash the parties’ appeals to the extent they concern Part 2
issues. We direct the trial court to enter an amended order that recites only
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the Part 1 decision. Once the Recorder of Deeds has recorded this amended
order, the parties shall retry Part 2 de novo.2
Judgment vacated. Appeals quashed to the extent they relate to Part 2
of the partition proceedings. Order of October 16, 2017 affirmed in part and
vacated in part. Case remanded for further proceedings in accordance with
this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2019
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2Although we direct that a Part 2 hearing be conducted de novo, if the parties
so choose, nothing herein would prevent them from stipulating into evidence
at the de novo hearing evidence and/or testimony already heard by the trial
court.
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