Hengst v. Hengst

HESTER, Judge:

Presently before the court is appellant-wife’s appeal from the final order of the lower court dated March 3, 1978, wherein appellant-wife’s exceptions to the Decree Nisi entered July 29, 1977, were dismissed and the Decree Nisi was adopted and entered as the final decree of the lower court.

In this equity action, appellant-wife claims that the assets of the Thrift Plan,¹ although titled in appellee-husband’s name alone, are joint property or owned as tenants by the entireties and therefore subject to partition² at the rate of one-half to appellant-wife and one-half to appelleehusband.

The lower court disagreed with appellant and held that the assets of the Thrift Plan although treated during their marriage by both parties as either jointly owned or owned as tenants by the entiretiés was nevertheless not jointly owned nor owned by the parties as tenants by the entireties and therefore not subject to partition.

We agree with the lower court and therefore affirm.

The law of the Commonwealth is such that “we recognize that the findings of facts of the chancellor, who heard the testimony without a jury, approved by the court en banc, are entitled to the weight of a jury’s verdict, that such findings are controlling and that the court’s decree should not be reversed unless it appears that the court abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence.” Lanning Will, 414 Pa. 313, 316, 200 A.2d 392, 393 (1964); Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960); Brown v. Gresh, 402 Pa. 35, 165 A.2d 629 (1960). However, where the conclusions reached by the chancellor, either of law or ultimate fact, are no more than the chancellor’s reasoning from the underlying facts, such conclusions are reviewable. Shapiro v. Shapiro, 424 Pa. 120, 127, 221 A.2d 164, 168 (1966).

The salient facts may be briefly summarized as follows: The parties were divorced by decree dated October 6, 1976. Two children were born of the marriage. At the time of the lower court’s adjudication, appellee had been an employee of American for 19 years and was presently a manager of one of its Acme Markets. Commencing in January of 1963, appellee had begun participating in America’s Thrift Plan and had continued to participate through the time of the lower court hearing. At hearing, both parties testified that despite the facts that they did not have an agreement in writing, they both considered the Thrift Plan to be jointly owned property (R. 2, 3, 13, 17).

Notwithstanding the parties’ testimony to the contrary, the Chancellor denied appellant’s request for the division or partition of the assets of the Thrift Plan.

The lower court’s conclusion appears to have been reached by the following steps:

1. During the marriage both parties treated the Thrift Plan as jointly owned property.

2. The Thrift Plan is in the nature of a chose in action.

3. Because the appellee-husband treated the Thrift Plan as jointly owned property he thereby intended to make a gift of one-half of its value to appellant-wife. (Emphasis added)

4. “ . . . That in order for a valid gift to occur, the allegations must disclose a donative intent, a delivery (actual or constructive), and an acceptance. However, when a gift of a chose in action is alleged, the required delivery is not accomplished unless there is an actual or constructive delivery of a writing, setting forth the nature of the subject matter of the gift.” Kreisl v. Kreisl, 415 Pa. 424, 204 A.2d 40, 41 (1964); Russell Estate, 385 Pa. 557, 123 A.2d 708, 63 A.L.R.2d 251 (1956), and cases cited therein.

5. Since in the instant case it is undisputed that the appellee-husband never indicated or evidenced appellant-wife’s joint ownership in the Thrift Plan by a writing, the proposed gift of one-half of said Thrift Plan was never completed. (Emphasis added).

6. Since there was never a completed gift, it follows that the Thrift Plan was not owned by the parties as tenants by the entireties or as joint tenants and therefore appellant-wife is not entitled to a partition thereof.

The Chancellor has classified the specified Thrift Plan in question as a “chose in action”³ notwithstanding the fact that the plan with limitations had already vested in the appellee (see footnote 1).

Thus, the Chancellor applied the law of the Commonwealth as same applied to an inter vivos gift of a chose in action and concluded that the contemplated gift was never completed because same was never evidenced by a writing.

Appellant erroneously relies on Di Florido v. Di Florido, 459 Pa. 641, 331 A.2d 174 (1975) to support her contention that the Thrift Plan is subject to partition at the rate of one-half to Appellant and one-half to Appellee.

The Pennsylvania Supreme Court in Di Florido, discarded the presumption that, as between spouses, the purchaser of household items is the owner of same and, therefore, the non-purchasing spouse has the burden to show that a gift of said household items to the marital unit had not been made. In Di Florido, our Supreme Court specifically concluded that “we can not accept an approach that would base ownership of household items on proof of funding alone”, . and “we will not burden either party with proving that such household items were donated to the marital unit”. Di Florido, supra, 459 Pa. 651, 331 A.2d 179.

The Di Florido court therefore resolved:

“We conclude, therefore, that for the purpose of determining title of household goods and furnishings between husband and wife, the property that has been acquired in anticipation of or during marriage, and which has been possessed and used by both spouses, will, in the absence of evidence showing otherwise, be presumed to be held jointly by the entireties. Since in this case, there was no proof of title to overcome such presumption, and since, in any event, the only evidence adduced at trial comported with a finding of joint ownership, we will not disturb the lower court’s findings.” (Emphasis added). Di Florido, supra, p. 180.

We find that Di Florido is non-dispositive of the instant controversy. Here, at issue, are not household goods and furnishings but, rather, title to, or ownership of, a Thrift Plan, which was properly categorized by the lower court as a chose in action. Moreover, and more importantly, Di Florido is inapposite for the reason that while in Di Florido there was no proof of title to said household goods and furnishings, in the instant case it is uncontested that title in and to said Thrift Plan vested in appellee’s name alone.

Since we agree with the conclusion reached by the lower court, we will not disturb its findings.

Judgment affirmed.

SPAETH, J., files a dissenting opinion.

1 . The particular Thrift Plan in the instant case is a voluntary savings plan available to management employees of American Stores Company (American) of which appellee was an eligible participant. Commencing January 1, 1973, appellee authorized American to withhold a certain percentage of his wages (originally 5%, then up to 6%) with which American purchased United States savings bonds in the employee’s individual name. In addition, as an integral part of the plan, American contributed from its own funds an amount equivalent to one-half of the sums deducted from the employee’s wages and with these employer contributions, purchased American common stock in the employee’s name.

Ordinarily, the government bonds and American stock were held by American until the participating management employee retired at which time the bonds and stock certificates were to be delivered to him. Prior to retirement, however, the employee could request delivery of the bonds and stock subject, however, to American’s vesting schedule which imposed certain penalties involving the loss of a portion of the stock.

For example, it was stipulated by the parties that as of October 1, 1976, American was holding for appellee, 383 United States savings bonds, series E, valued at $9,111.90 and 194.77 shares of American stock valued at 31'/s per share, or $6,062.34 for a total of $15,174.33. It was further stipulated by the parties that if appellee were to withdraw all of his Thrift Plan assets, he would forfeit 72.356 American shares, valued at $2,252.08.

2 . A conveyance to the marital unit, without more, vests title in both spouses as tenants by the entireties (Brenner v. Sukenik, 410 Pa. 324, 330, 189 A.2d 246, 249 (1963)). Under the Act of May 17, 1949 P.L. 1394, 68 P.S. § 501, after divorce, the former spouses become tenants in common of equal one-half shares of the property acquired after 1949 which was owned by them as tenants by the entireties.

3 . Black’s Law Dictionary, Fourth Edition, page 305, defines “chose in action” as: A personal right not reduced into possession, but recoverable by a suit at law. A right to personal things of which the owner has not the possession, but merely a right of action for their possession. The phrase includes all personal chattels which are not in possession; and all property in action which depends entirely on contracts express or implied. A right to receive or recover a debt, demand, or damages on a cause of action ex contractu or for a tort or omission of a duty. A right to recover by suit a personal chattel. Assignable rights of action ex contractu and perhaps ex delicto. Personalty to which the owner has a right of possession in future, or a right of immediate possession, wrongfully withheld, (citations omitted).