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Berman v. Thomas

Supreme Court of Arizona

March 1, 1933

MAX BERMAN, as Executor of the Estate of KATHERINE ALICE HARRINGTON, Deceased, Appellant,
LLOYD THOMAS, as Administrator of the Estate of JOHN P. HARRINGTON, Deceased, Appellee

APPEAL from a judgment of the Superior Court of the County of Gila. Richard Lamson, Judge. Judgment affirmed.

Mr. Edw. J. Flanigan, Mr. O. V. Willson and Mr. Don. P. Skousen for Appellant.

Mr. Charles L. Rawlins, Mr. George H. Rawlins, and Mr. Cullen A. Little, for Appellee.


Page 686

[41 Ariz. 458] ROSS, C. J.

This is an action by the wife, Katherine Alice Harrington, against the administrator of her deceased husband, John P. Harrington, for a division of community property and for an accounting. Since the trial in the lower court the plaintiff has died and her executor, Max Berman, has been substituted for her. Herein we shall refer to the wife as plaintiff and to the husband as defendant. The case was tried before the court on the pleadings and certain documentary evidence offered by the defendant in support of his pleas of res judicata and in abatement, and resulted in a judgment in favor of defendant. From this judgment the plaintiff has appealed. She contends under the admitted facts and the law applicable thereto she should have been given judgment as prayed.

From the pleadings and the evidence the facts appear to be as follows: The plaintiff and defendant were married April 21, 1908, in Salt Lake City, Utah, and later moved to Globe, Gila county, Arizona. They lived together as husband and wife until 1917. In 1919 in the superior court of Gila county, in cause No. 3352-B, the defendant, alleging desertion, filed a complaint asking to be divorced from plaintiff. In his complaint he alleged: "That the parties hereto [41 Ariz. 459] have accumulated community property during their said marriage; and that the property rights between the parties hereto have been adjudicated and settled and the defendant has received her share of the said community estate." He prayed for a divorce "and that the adjustment of the property right be approved." The plaintiff filed an answer denying that she was guilty of desertion, and also filed a cross-complaint in which she charged defendant with desertion and asked that she be divorced from him on that ground. In neither the answer nor the cross-complaint was any reference made to the property settlement as alleged in the complaint.

The court heard the evidence and granted the divorce to the plaintiff. One of the findings was "that all community property rights of the plaintiff and defendant have been settled"; and it was decreed "that the community property interests of the parties hereto of this marriage have been heretofore settled and adjusted between them outside of court." This judgment and decree became final.

It is shown that the "property settlement" was a payment to the plaintiff by her husband of the sum of $7,750 cash.

The defendant was, on or about April 2, 1927, killed in an automobile accident. Thereafter plaintiff, not as the wife or heir to his estate, but upon the telegraphic request of the decedent's father who lived in Ireland, applied for letters of administration. This application was denied and Lloyd Thomas was appointed administrator, and is now and ever since has been the personal representative of the deceased.

On April 7, 1928, plaintiff commenced an action, numbered 6252-B in the superior court of Gila county, against the administrator, having for its purpose the setting aside and vacating the judgment and decree [41 Ariz. 460] of divorce theretofore entered in cause No. 3352-B, as also the "property settlement." In the complaint it was alleged among other things, that plaintiff had asked for and obtained said divorce through threats, fraud, undue influence and compulsion from her husband; that she was compelled by him to procure the decree of divorce in such manner as to constitute a fraud upon the plaintiff and the court; that he concealed from the plaintiff the community assets which amounted to approximately $40,000, and that the sum paid to her, to wit, $7,750, was entirely inadequate; that but for the threats, the fraudulent and undue influence of her husband, the plaintiff would not have secured the divorce and would not have entered into the unjust and unconscionable settlement with him. She prayed that the decree theretofore entered and the purported property settlement be set aside and held for naught, and that she be apportioned her one-half interest in the community property. Upon motion of the defendant certain portions of this complaint were stricken "upon the ground of laches and upon the further ground that there was no equity in the complaint." Thereafter, on January 7, 1929, the plaintiff having failed to file amended pleadings or to otherwise proceed in the cause, the court entered judgment dismissing the cause of action with prejudice.

Page 687

From this judgment no appeal was taken and it became final.

On September 26, 1931, the plaintiff filed her third amended complaint in said superior court of Gila county (and it is the cause of action therein stated that we are here considering), in which she alleged: The formal facts of marriage, the acquisition during such marriage of community property of considerable value, the property settlement of 1919, the divorce, incorporating therein the judgment granting the decree of divorce in cause No. 3352-B, and the [41 Ariz. 461] subsequent action and judgment in cause No. 6252-B. In this complaint she attempts to avoid the effect of said actions and judgments by alleging that while there was a property settlement, the deceased, who had the control and management thereof, had failed and neglected to disclose to her the extent of such community property, and had deceived her as to its value; that the contract of settlement as to the realty was in writing, but that she had no distinct recollection as to whether there was a written contract concerning the personal property. She does not seek to set aside either the decree of divorce or the settlement, but asks in disregard thereof for one-half of the community ...

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