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Smith v. Smith

Decided: January 11, 1963.

ANNA SMITH, PLAINTIFF,
v.
ALFRED JOHN SMITH, ETC., ET ALS., DEFENDANTS



Pashman, J.s.c.

Pashman

This was a suit by plaintiff Anna Smith to quiet title to certain premises and for a partition thereof. A consent judgment for sale was entered on June 28, 1962, the sale was held on August 9, 1962, and an order confirming sale was entered on August 28, 1962. The sale price was $4,000; after deduction of commissions and fees, a total of $3,675.53 was deposited with the court subject to a determination as to the relative priorities among various claimants against that portion of the proceeds (50%, or $1,837.77) which represents the share of defendant Alfred Smith.

The claims against these proceeds are as follows: (1) the law firm of Kapelsohn, Lerner, Leuchter & Reitman, one half of the total counsel fee allowed, if any, for the conduct of the litigation, (2) Abraham Kapelsohn, as assignee of a judgment against Alfred Smith, docketed on October 4, 1955 -- this judgment in the amount of $602.40, with interest computed at 6% from October 4, 1955 to October 4, 1962, totals $855.41, (3) plaintiff Anna Smith for $805.23, one half of the monies paid by her to the Howard Savings Institution, as adjudicated by the entry of a divorce judgment nisi entered in her favor on January 13, 1961, (4) plaintiff Anna Smith for $162.69, one half of monies paid by her to the Howard Savings Institution subsequent to the judgment nisi (before final judgment) which paid off the balance of a mortgage against the premises. (I should note that there is

a dispute about this sum, based upon a contention by the United States of America, that only those payments totaling $100.19 made by plaintiff subsequent to the entry of a final judgment of divorce should be considered; one half of this is $50.10. The United States concedes that this latter amount is a prior lien.); (5) plaintiff Anna Smith for $122.75, one half of the amount paid by her to the City of Jersey City for real estate taxes after the mortgage was paid; (6) plaintiff Anna Smith for $265, one half of the monies paid by her for necessary repairs to the premises since the date of her defendant husband's desertion as adjudicated by the judgment nisi , and (7) the United States of America for federal tax liens upon the premises which were assessed against defendant Alfred Smith and recorded in the office of the County Clerk of Hudson County. This last item consists of three liens: the first entered on March 18, 1958 in the sum of $1,127.10; the second entered on June 3, 1958 in the sum of $875.78; and the third entered on November 24, 1959 in the sum of $894.45 which, concededly, includes the second lien of $875.78. The total which the United States claims as a lien against the proceeds, subject only to the $50.10 figure under item 4 above, is $2,021.55.

The facts have been stipulated. The sole questions remaining are the priorities to be accorded the seven items hereinbefore mentioned.

On January 13, 1962 and April 14, 1962, a judgment nisi and final judgment, respectively, were entered in plaintiff's favor in a divorce proceeding instituted by said plaintiff against defendant Alfred Smith on the ground of desertion. Incident to a determination of priorities is the resolution of the question of the point of time at which plaintiff and defendant Alfred Smith, owners of the premises as tenants by the entirety, became owners as tenants in common.

In Eberle v. Somonek , 24 N.J. Super. 366 (Ch. Div. 1953), affirmed per curiam 27 N.J. Super. 279 (App. Div. 1953), the lower court said, at page 374:

"So long as the marriage existed between defendant and his former wife, they continued to hold an estate by the entireties and such an estate is not subject to partition. * * * But a final decree of divorce dissolving the marriage between a man and his wife will * * * operate to convert an estate held by them as tenants by the entirety to a tenancy in common. Buttlar v. Buttlar , 67 N.J. Eq. 136 (Ch. 1904); Baker v. Kennerup , 102 N.J. Eq. 367 (Ch. 1928)." (Emphasis added.)

In this case the judgment nisi did not terminate the marriage since it is only a conditional judgment of divorce. Not until final judgment was entered on April 14, 1962 did the plaintiff and defendant Alfred Smith become tenants in common; prior to that time the marital status remained. See, e.g., Dacunzo v. Edgye , 33 N.J. Super. 504 (App. Div. 1955), affirmed 19 N.J. 443, 449 (1955).

The Government has conceded, under the authority of Weh v. Weh , 63 N.J. Super. 238 (Ch. Div. 1960), that the plaintiff is entitled to priority over the United States in the sum of $50.10 which represents one-half the amount paid by her to reduce and satisfy the mortgage indebtedness subsequent to April 14, 1962 (final judgment of divorce).

In Weh Judge Mintz held that a divorced wife was entitled to subrogation for one half of payments made on her account subsequent to the final divorce. No determination was made as to payments made by her prior to that time. The court did state that in determining whether the divorced wife was entitled to be subrogated to the lien of the prior mortgage, the criterion to be applied is what "'will best serve the purposes of justice and the actual and just intention of the party.' Kinkead v. Ryan , 65 N.J. Eq. 726, 728 (E. & A. 1903)." Weh ...


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