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Czajkowski v. Labowitz

Court of Appeals of Virginia

March 21, 2000

JOYCE ELIZABETH CZAJKOWSKI
v.
KENNETH E. LABOWITZ, AS ADMINISTRATOR C.T.A. OF THE ESTATE OF ANTHONY F. CZAJKOWSKI

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY. Benjamin N. A. Kendrick, Judge.

Robert A. Payne (Fagelson, Schonberger, Payne & Deichmeister, P.C., on briefs), for appellant.

Kenneth E. Labowitz (Jason D. Blatt; Dingman Labowitz, P.C., on brief), for appellee.

Present: Judges Willis, Bumgardner and Frank.

MEMORANDUM OPINION [1]

JERE M. H. WILLIS, JR. JUDGE

On appeal from the denial of a contempt citation, Joyce Elizabeth Czajkowski contends that the trial court erred in holding that a deed to her former husband and herself conveyed title as tenants in common, rather than as joint tenants with the right of survivorship. Because this holding was not embraced by the pleadings within the scope of the parties' divorce action, we reverse and vacate the holding without prejudice.

Anthony and Joyce Czajkowski, while married, owned a condominium as tenants by the entireties. They separated in 1988 and lived apart thereafter. On December 26, 1996, they executed a marital settlement agreement which provided, in relevant part, as follows:

II. C. The Husband and Wife will retain ownership as joint tenants with common law rights of survivorship of the condominium . . . subject to the following:

1. Wife shall have the exclusive right to use said condominium as her residence. Wife shall be responsible for paying the condominium fees of said condominium and maintaining the property in a habitable condition.

2. Wife shall have the sole right to sell said condominium. Husband and Wife will share the difference equally, if any, between the selling price of said property and the mortgage principal balance outstanding on the date of sale.

3. Should Wife desire to obtain sole title to the property, Husband shall transfer his interest to her for 50 percent of the difference between the property's fair market value and the mortgage principal balance outstanding at that time of transfer.

By decree entered June 3, 1997, Anthony and Joyce were granted a divorce a vinculo matrimonii . The decree provided, in pertinent part:

It is further . . .

ADJUDGED, ORDERED and DECREED that the Property Settlement Agreement dated December 26, 1996, is affirmed, ratified and incorporated, but not merged in this decree.

The divorce decree converted the tenancy by the entireties to a tenancy in common. See Code § 20-111. On December 22, 1997, Anthony and Joyce executed a general warranty deed conveying the condominium to themselves " as joint tenants with common law right of survivorship."

Anthony died on October 31, 1998. Kenneth E. Labowitz qualified as Administrator C.T.A. of his estate. By deed dated December 28, 1998, Joyce, " divorced and not remarried, surviving joint tenant of Anthony F. Czajkowski, deceased, " conveyed the condominium to herself. The deed recited:

The above-named Anthony F. Czajkowski departed this life on October 31, 1998, . . . leaving Joyce E. Czajkowski as his surviving joint tenant.

* * * * * * *

The purpose of this deed is to ratify and confirm ownership of Joyce E. Czajkowski upon the death of Anthony F. Czajkowski.

Labowitz, as administrator of Anthony's estate, petitioned the trial court to hold Joyce in contempt for refusing to pay Anthony's estate one-half of the equity in the condominium pursuant to Part IIC(3) of the marital settlement agreement. By decree entered August 4, ...


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