Heldt v. Heldt

This is an appeal from a decree of partition entered by the circuit court of Henry County. A freehold is involved. John Heldt, the defendant, and Betty Heldt, the plaintiff, are husband and wife and are the parents of three teen-age children. Some six years ago the parties acquired the property in question as joint tenants and built a residence wherein the family still resides. In December, 1961, plaintiff filed a complaint to partition the premises, and on a date not entirely clear from the record presented defendant filed a separate complaint for divorce. The latter action, however, was voluntarily dismissed by defendant after the action for partition had gone against him and shortly after this appeal had been filed. Defendant's initial response to the partition complaint was a motion to dismiss which, in substance, alleged as grounds that partition would work irreparable hardship on defendant and the children, that plaintiff's motive for filing the suit was to force defendant to give her a divorce, and that plaintiff had been guilty of infidelity. When the motion to dismiss was denied, defendant filed an answer alleging by way of affirmative defenses, first, that there was an implied agreement between the parties not to partition, and, second, that defendant was entitled to homestead in the premises. After a hearing the circuit court resolved the issues for the plaintiff, the decree of partition expressly finding that homestead would not be set off in favor of either party.