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HomeMy WebLinkAbout21-2003-848 Orphans' IN RE: ESTATE OF MICHAEL P. CALABRESE, JR. IN THE COURT OF COMMON PLEAS OF OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION ESTATE NO. 21-03-0848 IN RE: DECLARATORY JUDGMENT OPINION AND ORDER OF COURT Bayley, J., March 22, 2005:-- Michael P. Calabrese, Jr. and Susan Calabrese were married on June 6, 1970. They separated in December 1990. On March 21, 1991, wife filed for a divorce. Despite years of contentious litigation in this court and the appellate courts, a divorce was not entered before husband died on September 18, 2003. At his death, husband was living with Debra O'Connor. He bequeathed her one-half of his estate. He bequeathed one-quarter to his daughter Jennifer, and one-quarter to his daughter Kristy, the children of his marriage. The administrator CTA of husband's estate filed a complaint for a declaratory judgment to determine the ownership of eighty-two firearms claimed to be part of the estate. Susan Calabrese makes claim to all of the firearms.1 Sixty-five of the firearms are handguns. Forty-six are registered with the Pennsylvania State Police as having been sold by a dealer to husband, six are registered as having been sold by a dealer to persons other than husband, and thirteen are not registered. Seventeen of the firearms are long arms. Long arms are not registered with the Pennsylvania State Police. All of the firearms were purchased after the marriage in 1970, and before the separation in ESTATE NO. 21-03-0848 1990. Of the forty-six handguns registered with the State Police, one was purchased in 1975, one in 1977, one in 1983, and the remainder from 1985 through 1988. Wife is still living in the marital home in Mechanicsburg, Cumberland County from which husband separated. They appeared in this court in their divorce action on May 17,1991. An order was entered by Hoffer, P.J., regarding various items of property, including the following: [t]he parties maintain a safe in the premises [marital residence] to store the gun collection and we direct that the collection be kept in the safe. . . . We direct both parties to maintain custody and control of the various assets in their possession and we strictly prohibit either party from selling any property in their possession without leave of court. We note that there may be contests between the parties as to whether certain assets are marital property or owned individually; in our order directing that no property be sold, we make it clear that this order applies to all property, whether considered by the parties to be marital or non-marital property. Another order was entered by Judge Hoffer on May 14, 1992, which included the following: On the request of husband for possession of the guns, being various pistols and rifles stored at the marital residence, we do direct that the husband may take possession for safe keeping and maintenance of all pistols and long-barred arms in the collection. We specifically refer to our order of May 17, 1991, where we directed both parties not to sell any property in their possession without using the court, and we refirm [sic] that order, noting that any violation of the court order may subject the violator to contempt of court with possible penalties flowing therefrom. We note that wife has obtained her appraisal on the pistols and is in the process of getting the rifles appraised. We direct that wife's counsel to submit to the court and other counsel a copy of this appraisal by May 22, 1992, so that the court can set an appropriate bond for the value of these 1 Other claims were made in the complaint, all of which have been resolved. -2- ESTATE NO. 21-03-0848 pistols to ensure that the equity remains therein. Transfer of the weapons shall not take place until the court directs the timing of the transfer. The firearms were then appraised at $35,165 in May, 1992. The court set the bond at $35,000 that would allow husband to take possession. He never posted the bond. The weapons have remained in the marital residence. Susan Calabrese testified that except for one rifle that husband bought her in 1982 to shoot skeet, the rest of the firearms were purchased together as investments. Many have not been fired and are still in their original boxes. Some are antiques. Husband may have fired about five of the pistols and four of the rifles. They fired some of them while together at a family farm, and at the Fish and Game Association in Carlisle. Husband bought some of the firearms when she was not present, although most of the times she was. Those that were purchased from a dealer were registered in husband's name because he had a license to carry and transport firearms. The firearms were purchased with checks on a joint account, or with a credit card, although husband may have paid cash for some of the unregistered handguns. They purchased a cabinet for the rifles, and a safe for the handguns that is hidden in back of the cabinet. The cabinet and safe are in the marital home where the firearms are now stored, and have always been stored. Wife has cleaned and maintained the firearms since husband left the marital residence in December, 1990, which is something he taught her to do. For many years husband earned between $250,000 and $300,000 a year. Wife did not work outside of the home. He took care of the finances. They jointly -3- ESTATE NO. 21-03-0848 owned three townhouses and some wildlife prints as investments, and had a joint investment account at Merrill Lynch. DISCUSSION Wife claims the firearms as a surviving tenant by the entireties. A tenancy by the entireties is characterized by the right of survivorship; upon the death of one spouse, the survivor becomes the sole owner of the entireties property. In re Holmes Estate, 414 Pa. 403 (1964). In Constitution Bank v. Olson, 423 Pa. Super. 134 (1993), the Superior Court of Pennsylvania stated: "[a]n estate by the entirety is a form of co-ownership in real and personal property held by a husband and wife with a right of survivorship. Its essential characteristic is that each spouse is seized per tout et non per my, i.e., of the whole or the entirety and not of a share, moiety, or divisible part." In re Gallagher's Estate, 352 Pa. 476, 43 A.2d 132, 133 (1945) (Citations omitted); Wakefield v. Wakefield, 149 Pa.Super. 9, 25 A.2d 841, 842 (1942). The case law appears established in that the type of ownership which is created in property when a husband and wife are involved, regardless of how the relationship is denominated and in the absence of clear and convincing evidence to the contrary, is as tenants by the entireties. The last paragraph must be read in conjunction with the facts in Constitution Bank which involved accounts held in the name of husband and wife as joint tenants with right of survivorship. In setting forth the general principles of law applicable to the case the Superior Court cited Holmes Estate, supra, for the proposition that: Where property or an account is placed in the names of a husband and wife, a gift and the creation of an estate by the entireties is presumed even though the funds used to acquire the property or to establish the account were exclusively those of the husband. . . it is their actual marital -4- ESTATE NO. 21-03-0848 status and not necessarily the words stated or omitted in the instrument that determines their right to take as tenants by the entireties. . . The Superior Court concluded in Constitution Bank that the presumption that the "JTWROS" accounts were an estate by the entireties, as contrasted to other accounts in the name of husband only, was not rebutted by clear and convincing evidence. It held that those accounts were not subject to execution by a judgment creditor of husband only. An estate by the entireties is different from marital property which is subject to equitable distribution in a divorce case. "Martial property" is defined as "all property acquired by either party during the marriage" with some exceptions not applicable in the present case. 23 P.S. S 3501 (a). Section 3501 (b) of the Divorce Code provides: (b) Presumption.-AII real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the partiers in some form of co- ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a).2 The prior orders of this court regarding the firearms involved their status only as marital property. The Calabrese divorce action abated upon the death of husband. See In re Estate of Cochran, 738 A.2d 1029 (Pa. Super. 1999). While all eighty-two firearms were the marital property of husband and wife, that does not resolve, for estate purposes, whether all or some of the firearms were individually owned by husband, and 2 The burden of overcoming the presumption of marital property is by a preponderance of the evidence. Sutliff v. Sutliff, 518 Pa. 378 (1988). -5- ESTATE NO. 21-03-0848 therefore part of his estate, or owned by husband and wife as tenants by the entireties, and therefore now hers as a surviving tenant. Because the firearms were not placed in any form of joint ownership with wife there is no presumption of a tenancy by entireties under Holmes Estate or Constitution Bank. In DiFlorido v. DiFlorido, 459 Pa. 641 (1975), the Supreme Court of Pennsylvania held that for the purpose of demonstrating title of household goods and furnishings between husband and wife of property that has been acquired during marriage, and which has been possessed and used by both spouses, in the absence of evidence showing otherwise the property is presumed to be held jointly by the entireties. In Miller v. Miller, 34 D. & C.3d 82 (Somerset County 1984), the Court of Common Pleas of Somerset County, after reviewing the historical development in the law governing ownership of personality acquired during marriage, concluded: Although DiFlorido stressed applicability of the presumption of joint ownership to property which "has been possessed and used by both spouses," and apparently contemplated property like household goods whose use is joint, we think the other important considerations above outlined warrant extending the notion to any family tangible personality possessed and used by either or both spouses in any non-business activity. The Calabrese Estate, noting that husband was a gun collector, had a license to carry and transport firearms, purchased the firearms with his income, and that forty-six of the handguns are registered by the State Police as having been purchased by him -6- ESTATE NO. 21-03-0848 from a dealer,3 argues that the firearms were his individual property and not owned as tenants by the entireties. The registration of the forty-six handguns with the State Police, a prerequisite to a transfer from a dealer, is not the equivalent of title. Although husband was the wage earner and wife was a housewife, and therefore the money used to purchase the firearms came from his earnings, that is of little weight given such long discarded views on property rights between spouses. All of the firearms were purchased while the parties were living together, many of them are still in their original boxes, and few have ever been fired. They were stored in the marital residence and maintained by both husband and wife. Husband left them there when he separated. Notwithstanding whether husband was a "gun nut," as described in the brief for the Estate, the credible evidence is that this seldom used firearm collection was a marital investment. It was the property of husband and wife as tenants by the entireties. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2005, IT IS DECREED that the sixty- five handguns and seventeen long arms at issue were owned by Michael P. Calabrese, Jr. and Susan Calabrese as tenants by the entireties. By the Court, 3 The handguns sold by a dealer to persons other than husband would reflect that he came into possession via a sale from those persons or intervening persons. Likewise, the thirteen handguns that are not registered would reflect that he came into possession by a sale from a non-dealer. -7- ESTATE NO. 21-03-0848 Edgar B. Bayley, J. R. Mark Thomas, Esquire The Calabrese Estate Andrew C. Sheely, Esquire For Susan Calabrese :sal -8- IN RE: ESTATE OF MICHAEL P. CALABRESE, JR. IN THE COURT OF COMMON PLEAS OF OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION ESTATE NO. 21-03-0848 IN RE: DECLARATORY JUDGMENT ORDER OF COURT AND NOW, this day of March, 2005, IT IS DECREED that the sixty- five handguns and seventeen long arms at issue were owned by Michael P. Calabrese, Jr. and Susan Calabrese as tenants by the entireties. By the Court, Edgar B. Bayley, J. R. Mark Thomas, Esquire The Calabrese Estate Andrew C. Sheely, Esquire For Susan Calabrese :sal