Spears v. Spears , 769 A.2d 523 ( 2001 )

TODD, J.:

¶ 1 Johnny W. Spears (“Husband”) appeals the February 16, 2000 Order of the Beaver County Court of Common Pleas in which the court concluded that he and his former wife, Grace E. Spears (ICWife”), were owners of equal one-half shares of real property located at 216 Park Road, Beaver County, Pennsylvania (the “Property”), and directed the partition of the Property. For the reasons set forth below, we reverse and remand.

¶ 2 The relevant facts may be summarized as follows. On December 19, 1967, at which time they were married and living together, Husband and Wife purchased the Property for $18,000. There was a mortgage on the Property in the amount of $16,200. In November 1969, the parties separated and Wife voluntarily left the residence. The parties were divorced on September 20, 1974, at which time they became owners of equal one-half shares of the Property as tenants in common by operation of law.¹ Since the parties’ separation in 1969, Husband has maintained exclusive possession of the Property, either as resident or landlord. During this time, Husband paid off the mortgage, and paid all taxes, insurance premiums, and maintenance costs for the Property.

¶3 On April 22, 1998, Wife filed an action for partition of the Property. Thereafter, Husband filed an action for contribution against Wife, seeking reimbursement for a portion of the maintenance costs he had incurred. Wife then filed a counterclaim for back rent. On October 29, 1999, the trial court consolidated the two cases for trial. On February 15, 2000, the trial court held a hearing to determine whether it should direct partition of the Property. At the hearing, Husband alleged, inter alia, that Wife had been divested of her interest in the Property by way of Husband’s adverse possession. The trial court ruled, however, that the theory of adverse possession could not be used to defeat Wife’s ownership rights in the Property under 28 Pa.C.S.A. § 8507(a).

¶4 The sole issue presented for this Court’s review, as recited in Husband’s Statement of Questions Involved, is “[w]hether the lower court erred or abused its discretion in directing partition under 23 Pa.C.S.A. § 3507(a) by deciding as a matter of law that Johnny Spears does not have standing to raise the affirmative defense of adverse possession because § 3507(a) provides each cotenant [sic] with an absolute right to partition.” (Appellant’s Brief at 2.)

¶5 This Court recognizes that “[t]he scope of appellate review of a decree in equity is limited. Absent an abuse of discretion or an error of law, we are bound to accept the findings of the trial court or master.” Werner v. Werner, 393 Pa.Super. 125, 573 A.2d 1119, 1121 (1990). After thorough review, we conclude the learned trial court erred as a matter of law in precluding Husband’s use of an adverse possession defense.

¶ 6 In its opinion, the trial court correctly set forth the section of the Divorce Code which provides a former spouse with the right to partition property previously held as tenants by the entireties:

(a) General rule. — Whenever married persons holding property as tenants by the entireties are divorced, they shall, except as otherwise provided by an order made under this chapter, thereafter hold the property as tenants in common of equal one-half shares in value, and either of them may bring an action against the other to have the property sold and the proceeds divided between them.

23 Pa.C.S.A. § 3507(a).

¶ 7 The trial court then cites, as support for its holding that Husband could not assert the defense of adverse possession, the case of Werner, supra, which “presented a factual situation virtually identical to that in the case at bar. Superior Court affirmed an order directing partition.” (Trial Court Opinion, 2/16/00, at 3.) The trial court further opined that the cases cited by Husband for the proposition that the theory of adverse possession is an affirmative defense to a partition action were inapplicable because they did not involve disputes between tenants in common that were formerly husband and wife. Because we find Werner to be distinguishable, we find the trial court’s reliance thereon misplaced.

¶ 8 In Werner, the parties purchased property in October 1956, when they were husband and wife. In 1959, the wife vacated the property, but the husband continued to occupy the premises and remained in possession thereof until at least 1986. The parties were divorced in December 1963 and in May 1984, the wife filed an action seeking partition of the property pursuant to what was then 68 P.S. § 501. The husband counterclaimed for repayment of maintenance costs, taxes, insurance and mortgage payments. Wife then asserted, in new matter, that the rental income received by the husband for the property offset the expenses incurred by him and that, under 68 P.S. § 503, only hens of record could be deducted from the proceeds of a partition sale. Following a hearing, the master recommended that the wife’s request for partition be granted, and found that the husband’s claim for contribution was offset by the wife’s claim for rental income. The trial court dismissed the husband’s exceptions and ordered partition of the property.

¶ 9 On appeal, the husband first claimed that the trial court erred in failing to find the wife’s claim for partition barred by the statute of limitations and the doctrine of laches. The husband also claimed, for the first time, that the trial court erred in ruling on the issue of the parties’ respective liabilities as to contribution for expenses and rental income. With respect to the husband’s first claim, this Court stated:

Appellant claims that the trial court and master erred in failing to find that ap-pellee’s claim for partition was barred by the statute of limitations and the doctrine of laches. Appellee responds that appellant waived these defenses by failing to raise the defenses in his New Matter. Pennsylvania Rule of Civil Procedure 1030 requires that all affirmative defenses, including the defenses of lach-es and statute of limitations, be pleaded in a responsive pleading under the heading “New Matter.” A review of the pleadings shows that appellant did not raise these defenses in his New Matter. Failure to plead an affirmative defense in compliance with Rule 1030 results in waiver of the defense. We find that appellant has waived the statute of limitations and laches defenses.

Werner, 573 A.2d at 1121 (citations omitted).

¶ 10 Based on our reading of the language quoted above, we cannot conclude that this Court intended to preclude, in all cases, the assertion of the defense of adverse possession. Initially, we note that in Werner this Court did not address the specific defense of adverse possession, but only the affirmative defenses of laches and the statute of limitations. Secondly, this Court concluded only that the husband in Werner had waived those defenses by failing to raise them in his New Matter as required under Rule 1030, not that these defenses were unavailable.

¶ 11 With regard to the second issue raised by the husband in Werner, this Court acknowledged that there existed a conflict between 68 P.S. § 503² and Rule 1570 of the Pennsylvania Rules of Civil Procedure,³ to the extent that Rule 1570 allowed claims for expenses incurred for maintenance, taxes, mortgage payments, and rental income, while Section 503 limited deductions from proceeds of a partition sale to liens of record. Id. at 1122. Relying on our previous holding in Hairston v. Hairston, 381 Pa.Super. 278, 553 A.2d 464 (1989), in which we held that 68 P.S. § 501, et seq., must be strictly followed, we concluded that only liens of record could be deducted from the sale of proceeds. Werner, 573 A.2d at 1122. See also Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973).

¶ 12 Again, however, we find Werner to be distinguishable from the instant case, in that in the case sub judice, there is no direct conflict between the relevant statute, 23 Pa.C.S.A. § 3507, and another statute or rule of procedure. The absence of such conflict was a crucial factor in our Supreme Court’s determination in Lohmiller v. Weidenbaugh, 503 Pa. 329, 469 A.2d 578 (1983). In Lohmiller, the husband and wife owned 40% of a 170-acre farm as tenants by the entireties. The remaining 60% interest was held by the husband’s mother. The husband petitioned for partition of the 40% interest and the wife filed preliminary objections, asserting that the husband failed to join his mother, the co-tenant, as an indispensable party under Rule 1553 of the Pennsylvania Rules of Civil Procedure, which provided that “[a]n action for partition may be brought by any one or more co-tenants. All other co-tenants shall be joined as defendants.” Pa.R.C.P. 1553. The trial court dismissed the wife’s objection and ordered the 40% interest partitioned, and the wife appealed. This Court affirmed. Lohmiller v. Weidenbaugh, 302 Pa.Super. 174, 448 A.2d 583 (1982). In reversing this Court’s decision, the Pennsylvania Supreme Court stated:

While the Act [68 P.S. § 501 et. seq.] provides a complete remedy for the partition of property formerly held by the entireties, it is neither the sole nor exclusive remedy. Equitable partition pursuant to Pa.R.Civ.P. 1551-1574 is another means for the partition of property formerly held by the entireties. The Superior Court’s holding that Pa.R.Civ.P. 1551-1574 are inapplicable to the present case disregards established principles of statutory construction. Since the Act and Pa.R.Civ.P. 1551-74 relate to the same subject matter, the partition of property, the two provisions must be read in pari materia so that effect can be given to both.

When the Act and Pa.R.Civ.P. 1551-1574 are construed together, it is apparent that while a former husband may initiate an action for the partition of property formerly held by the entireties pursuant to the Act, all other co-tenants must be joined as defendants pursuant to Pa.R.Civ.P. 1553. This construction presents no conflict between the provisions and gives them both effect.

Id. at 332-333, 469 A.2d at 580 (footnotes omitted) (citations omitted). ’ See also Hairston, 553 A.2d at 468 (“For our purposes, the crucial statement is ‘This construction presents no conflict between the provision and gives them both effect.’ ” (quoting Lohmiller, 469 A.2d at 580)).

¶ 13 Thus, as there is no direct conflict in the instant case, we find Werner to be distinguishable, and the trial court’s reliance thereon in error.

¶ 14 We stress that we do not herein make a determination as to whether Husband has met the required elements in order to establish adverse possession of Wife’s interest in the Property, and we are not suggesting that Husband’s sole possession of the Property since the time of separation, without more, meets the requirements for adverse possession. We conclude only that there is no per se rule which precludes Husband from asserting adverse possession as a defense to Wife’s action for partition.⁴ Accordingly, we remand this matter to the trial court for a hearing to allow the presentation of evidence as to whether Husband has acquired Wife’s interest in the Property by adverse possession.

¶ 15 Reversed and remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 16 LALLY-GREEN, J., joins and files a concurring opinion. ¶ 17 BROSKY, J., flies a dissenting opinion.

1 . See 68 P.S. § 501, now repealed, effectively re-enacted in Section 3507 of the Divorce Code, 23 Pa.C.S.A. § 3507.

2 . Section 503 provided:

§ 503. Division of proceeds; liens; record of divorce; payments into court

The proceeds of any sale had under the provisions of this act, after the payment of the expenses thereof, shall be equally divided between the parties, subject, however, to the deduction therefrom of the amount of any lien entered of record jointly against both of the respective parties, together with any interest due thereon and docket costs; and the amount of any liens entered of record against either of such parties, together with interest due and costs taxed thereon, shall be deducted from the share of the party against whom such lien is filed, and paid to the person or persons to whom the same is due and payable.

68 P.S. § 503, quoted in Werner, 573 A.2d at 1121.

3 . Rule 1570 provided in part:

Rule 1570. Adjudication and Decree

(a) The adjudication shall include findings of fact as follows:

(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;

Pa.R.C.P. 1570(a)(4) and (5).

4 . We are not persuaded to the contrary by Wife’s citation to two decisions by the Court of Appeals of Tennessee, Hampton v. Manuel, 56 Tenn.App. 95, 405 S.W.2d 47 (1965) and Teeples v. Key, 500 S.W.2d 452 (Tenn.Ct.App.1973). Aside from the fact that these cases are not binding on this Court, we believe the holdings in these cases were fact-specific, and do not create a per se rule against the defense of adverse possession. See Teeples, 500 S.W.2d at 457 ("Generally speaking, where a husband and wife hold realty as tenants by the entireties during the marriage and as equal tenants in common after divorce, the husband's uninterrupted possession of said realty for twenty years after the wife deserts him does not amount to an ouster of her as a tenant in common so as to vest in him the title to said land by prescription. Hampton v. Manuel (1965), 56 Tenn.App. 95, 405 S.W.2d 47. The burden of proving title by adverse possession for the prescriptive period of twenty years is upon the defendants and, after a consideration of all of the evidence in this case, we are convinced that they have not successfully carried this burden.”).