On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, FM-02-2859-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Axelrad & R.B. Coleman.
The Estate of James R. Canino appeals from a trial court order of July l2, 2005, granting partial summary judgment to Marianne Canino determining the Estate has no interest in the property located at l58 Country Club Drive in Oradell, New Jersey. We affirm substantially for the reasons articulated by Judge Koblitz following oral argument.
Marianne and James Canino were married in l989. In l990, they purchased the Oradell property with money from James' father. Title to the property was taken in the names of "James R. Canino and Marianne Canino," without reference to their relationship as husband and wife. Nor did the instrument designate the parties' interests as joint tenants or tenants in common. In 2004, Marianne filed for divorce but James died in a motorcycle accident prior to its resolution. His Will left his entire estate to the minor children of the marriage through a testamentary trust. Marianne continued to reside in the property with the parties' children.
James' Estate filed suit against Marianne, contending the parties held title to the Oradell property as tenants in common rather than as tenants by the entirety. Accordingly, the Estate claimed it was entitled to a one-half interest in the property, which should vest in the testamentary trust created for the children under James' Will. The trial court granted Marianne's partial summary judgment motion, holding she was entitled to one hundred percent ownership in the property by operation of law upon James' death since it was held as a tenancy by the entirety. The remaining issues in the case were settled by the parties subject to the Estate's right to appeal issues relating to ownership of the family home.*fn1 This appeal ensued.
On appeal, the Estate argues the court erred in holding that the property was held as a tenancy by the entirety, not a tenancy in common, because the conveyance did not include the designation "husband and wife," which it asserts is required under N.J.S.A. 46:3-17.2 to create a tenancy by the entirety. N.J.S.A. 46:3-17.2 provides in pertinent part:
A tenancy by entirety shall be created when:
a. A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife . . .
Language which states "...... and ......, his wife" or ".......... and .........., her husband" shall be deemed to create a tenancy by the entirety.
The Estate further contends the court ignored James' father's certification about the intent of the couple as to the ownership of their marital home, which raised genuine issues of material fact precluding summary judgment.
We are satisfied Judge Koblitz properly rejected the Estate's argument, concluding that N.J.S.A. 46:3-17.2 does not mandate the use of the words "husband and wife" to create a tenancy by the entirety, but merely specifies that one is created if those words are used. The Estate acknowledges that this statute must be read in conjunction with N.J.S.A. 46:3-17.3, which codifies the common law presumption that a husband and wife hold as tenants by the entirety whenever they hold property together, unless the document of title expresses otherwise. N.J.S.A. 46:3-17.3 states:
No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or a joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it ...