Mosby v. Mosby, et al.
| Docket Number: | 2006-CA-00339-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-31-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Partition of property Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., Non Participating Judge(s): KING, C.J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 01-05-2006 Appealed from: WASHINGTON COUNTY CHANCERY COURT Judge: Marie Wilson Disposition: PARTITION OF THE PROPERTY ORDERED Case Number: 39,431 |
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| Party Name: | Attorney Name: | |||
| Appellant: | LOUIS WILLIAM MOSBY |
JOHN H. COX
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| Appellee: | CAROLYN MOSBY AND LEATRICE D. MOSBY | PAUL MATHIS LEATRICE D. MOSBY (PRO SE) |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Partition of property |
| Summary of the Facts: | Carolyn Mosby and Louis Mosby owned a residence as joint tenants with the right of survivorship. When the couple divorced, the divorce decree awarded Louis the sole use and possession of the residence and provided that when the residence is sold, the equity shall be divided equally between the parties. Louis later married Leatrice Mosby. After the mortgage on the property was paid in full, Louis conveyed his one-half interest in the property to Leatrice by quitclaim deed, reserving a life estate for himself. Three years later, Carolyn filed a "Petition for Partition and Sale of Real Property, or in the Alternative, for Other Relief," arguing that Louis's conveyance to Leatrice contravened the terms of the divorce decree and that she was entitled to a partition sale that would liquidate her equity in the property. The court ordered a partition by sale with the proceeds to be disbursed equally to Carolyn and Leatrice. Leatrice was to pay Louis the value of his life estate interest from her share of the proceeds. Louis appeals. |
| Summary of Opinion Analysis: | Louis argues that a non-occupying cotenant can never achieve partition of property occupied by an ex-spouse pursuant to an unmodified divorce decree and that the only proper route to relief for Carolyn would have been a suit to modify the divorce decree to permit partition. However, a cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition. Therefore, Carolyn's petition for partition was a proper mechanism for seeking partition of the property. Louis also argues that the chancellor modified the decree which was improper in the absence of a material change in circumstances. This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree. Louis's conveyance to Leatrice thoroughly frustrated the intent of the decree that Louis and Carolyn would retain their undivided half-interests as joint tenants until such time as the whole property was sold and the equity divided. After their divorce, Louis and Carolyn continued to hold the property as joint tenants. As the chancellor recognized, the conveyance to Leatrice imposed a new cotenant upon Carolyn. But the conveyance also severed the joint tenancy and rendered Carolyn a tenant in common with Leatrice. Thus, not only did the conveyance impose a new cotenant upon Carolyn, it also destroyed her right of survivorship. At this time, if Leatrice died, Carolyn would not survive to Leatrice's half-interest but would become a cotenant with Leatrice's heirs. Carolyn's loss of her survivorship interest was not intended by the divorce decree, which did not adjust title and contemplated that the parties would retain their respective interests until the property was sold and the equity divided. While Louis was free to dispose of his property as he chose, his conveyance of his half-interest to Leatrice and reservation of a life estate for himself contravened the intent of the divorce decree. Thus, the chancellor did not err in granting Carolyn's petition and ordering a partition by sale. |
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