Rogers v. Rogers

Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz,
and Kinser, JJ., and Poff, Senior Justice

WALTER M. ROGERS, JR., ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 980846 February 26, 1999

CHARLES EDWARD LEE ROGERS, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge

In this appeal we consider whether creditors, who

obtained a judgment against a husband and a different judgment

against his wife, may compel the sale of real property owned

by the husband and wife as tenants by the entireties with

right of survivorship to satisfy those judgments.

Because this case was decided on demurrer, we will state

the facts "in accordance with well-established principles that

a demurrer admits the truth of all material facts that are

properly pleaded, facts which are impliedly alleged, and facts

which may be fairly and justly inferred from alleged facts."

MNC Credit Corp. v. Sickels, 255 Va. 314, 316, 497 S.E.2d 331,

332 (1998) (quoting Cox Cable Hampton Roads v. City of

Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991)).

Walter M. Rogers, Jr., Ronald A. Rogers, and their

closely held corporation, Rogers Brothers, Inc., a Virginia

corporation, filed their amended bill of complaint against

Charles Edward Lee Rogers (Mr. Rogers), Eleanor P. Rogers
(Mrs. Rogers), Option One Mortgage Corporation, and Dennis E.

Burke, trustee. The complainants alleged the following.

In November 1991, the complainants obtained a judgment

against Mr. Rogers entered by a federal bankruptcy court in

Virginia in the amount of $145,000. The complainants obtained

a separate judgment against Mrs. Rogers in the amount of

$200,000 with interest, entered by the Circuit Court of Prince

William County in June 1995. The circuit court found that

Mrs. Rogers had participated with Mr. Rogers in a scheme to

delay, defraud, and hinder the complainants in their attempts

to collect their judgment against Mr. Rogers.

Mr. and Mrs. Rogers own real property as tenants by the

entireties with the right of survivorship. The real property

is located in Prince William County. Dennis Burke "has an

interest in the real property as the trustee under a first

deed of trust for the benefit of Option One Mortgage

Corporation . . . ."

The complainants further alleged: "The purposeful and

fraudulent actions of [Mr. and Mrs. Rogers] in attempts to

avoid Mr. Roger[s'] payment of the debt owed to the

[c]omplainants constitute a joint action by husband and wife

which gives rise to the second judgment and establishes the

[c]omplainants herein as joint creditors of both husband and

wife." The complainants requested that the circuit court,

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among other things, order the sale of the real property to

satisfy their judgments.

The defendants filed demurrers and asserted that the

complainants do not have a cause of action against them

because real property owned by the husband and wife as tenants

by the entireties cannot be sold to satisfy "two separate

judgments, obtained on two separate dates, against two

separate spouses." The trial court entered a decree

sustaining the demurrers, and the complainants appeal.

The complainants argue that they pled a cause of action

against the defendants because the joint tortious acts of the

husband and wife gave rise to related judgments against each

spouse for the same debt and, therefore, the real property

could be sold to satisfy the debt. We disagree with the

complainants.

We have stated, clearly and without equivocation, that

real property held as tenants by the entireties is exempt from

the claims of creditors who do not have joint judgments

against the husband and wife. Vasilion v. Vasilion, 192 Va.

735, 740, 66 S.E.2d 599, 602 (1951). We discussed this

elemental common law principle in Jones v. Conwell, 227 Va.

176, 181, 314 S.E.2d 61, 64 (1984):

"It is settled that tenancies by the entirety are
based upon the same four unities that support joint
tenancies, that is, the unities of title, estate,

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 time, and possession. However, it is also settled
that tenancies by the entirety are supported by a
fifth unity which they do not share with any other
tenancy: the unity of marriage. That unity
embodies the legal fiction that husband and wife are
one. And it leads to the result that neither
husband nor wife can by his or her sole act defeat
the survivorship interest of the other spouse.
Neither spouse can by separate act make an absolute
disposition of property they hold as tenants by the
entirety, nor can a judgment lien creditor of one
spouse subject that property to the satisfaction of
his lien."

Accord Pitts v. United States of America, 242 Va. 254, 258-59,

408 S.E.2d 901, 903 (1991).

Applying the aforementioned precedent, we hold that the

trial court did not err in sustaining the defendants'

demurrers. The complainants stated in their amended bill of

complaint that they had obtained one judgment against the

husband in the federal bankruptcy court for defalcation in a

fiduciary capacity and another judgment entered by the circuit

court against the wife in a fraudulent conveyance proceeding.

These separate judgments do not impose joint liability upon

the husband and wife. Thus, the complainants do not have a

cause of action to compel the sale of the real property held

by the husband and wife as tenants by the entireties with

right to survivorship to satisfy the judgments.

The complainants argue that even if they failed to state

a cause of action under existing law, this Court should

"expand" its decision in Price v. Hawkins, 247 Va. 32, 439

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S.E.2d 382 (1994), and create a remedy which would permit them

to obtain a decree enforcing their judgments against the

property. * Our decision in Price, however, is simply not

applicable here. In Price, we considered "whether the trial

court erred by entering in personam judgments against

transferees who participated in a fraudulent scheme to delay

and hinder a creditor by concealing the debtor's assets." Id.

at 33, 439 S.E.2d at 383. Construing Code § 55-80, which

confers upon a creditor a statutory right to request that a

circuit court set aside certain fraudulent conveyances, we

held that an in personam judgment against transferees in the

full amount of the fraudulent conveyances at issue in that

case was appropriate under the circumstances. 247 Va. at 37-

38, 439 S.E.2d at 385-86. Here, however, the complainants

have neither a statutory nor a common law right to satisfy

*
We reject the complainants' contention that our
decisions in Leonard v. Counts, 221 Va. 582, 272 S.E.2d 190
(1980), and Sundin v. Klein, 221 Va. 232, 269 S.E.2d 787
(1980), cert. denied sub nom., Cross v. Sundin, 452 U.S. 911
(1981), permit them to enforce their judgments against the
real property. These decisions have no application here. We
did not consider in Leonard or Sundin whether a creditor could
satisfy a judgment obtained against one spouse by requiring a
sale of real property held as tenants by the entireties with
the right of survivorship. In Leonard, we considered whether
a chancellor's decree that a husband and wife held title to a
parcel of land as constructive trustees was supported by clear
and convincing evidence. 221 Va. at 587, 272 S.E.2d at 194.
In Sundin, we held that a husband, who had murdered his wife,
could not recover her interest in real property that the

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their separate judgments by compelling a sale of real property

held by the husband and wife as tenants by the entireties with

the right of survivorship.

Finding no merit in the complainants' contentions, we

will affirm the chancellor's decree.

Affirmed.

husband and wife had acquired as tenants by the entireties
with survivorship. 221 Va. at 239-40, 269 S.E.2d at 791.

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