LOUISE A. SCHUSTER, Appellant,
THOMAS SCHUSTER, Appellee
APPEAL from a judgment of the Superior Court of the county of Maricopa. Levi S. Udall, Judge. Judgment affirmed.
Mr. Herman Lewkowitz, Mr. J. B. Zaversack and Mr. Wm. C. Fields, for Appellant.
Messrs. Anderson & Conway, for Appellee.
[42 Ariz. 192] McALISTER, J.
This is an appeal by Louise A. Schuster from a decree dissolving the bonds of matrimony between her and Thomas Schuster. The action was commenced by the latter in
June, 1931, under the provisions of section 2179, Revised Code of 1928, as amended in February, 1931. Prior to that time there were eight grounds upon which a divorce could be granted in this state, but the Tenth Legislature, as is shown by chapter 12, Session Laws of 1931, added a ninth, which reads as follows:
"When for any reason the husband and wife have not lived or cohabited together as husband and wife for a period of five years or more."
The complaint alleges that the plaintiff and defendant were married in 1918 and lived together as husband and wife until September, 1921, when they separated, and that for more than six years next preceding the filing of the complaint they did not live or cohabit together as husband or wife. It averred also that one child, Frances Louise, aged twelve years, was born to them and that plaintiff was willing to pay whatever the court felt reasonable for her support; that plaintiff and defendant owned as community property Lot 14, Block 1, Central Park Place, Phoenix, and that plaintiff owned as separate property seven lots in Central Park Place, Phoenix, subject to a trust deed in favor of Frances Louise Schuster covering one of them, Lot 15, and part of another, Lot 13, Block 1.
[42 Ariz. 193] To this complaint the defendant interposed a general demurrer, and also a plea in bar based upon a decree rendered in April, 1922, and in effect when this action was filed, which permitted the defendant legally and lawfully to live separate and apart from the plaintiff. The demurrer was overruled and the plea in bar denied, whereupon defendant answered denying the allegations of the complaint and asked by way of cross-complaint for an absolute divorce upon the ground of desertion and cruelty. After a hearing the court under the authority of Brown v. Brown, 38 Ariz. 459, 300 P. 1007, rendered a decree dissolving the bonds of matrimony existing between the parties and granted in addition the following relief: First, it awarded the custody of Frances Louise to the defendant and directed plaintiff to pay the latter for the support of said minor child $40 a month (this being in addition to the benefits accruing to the child under the deed of trust executed in her favor) and $25 a month for the support of the defendant; second, it divided the community property as follows: To the defendant, it gave Lot 14, Block 1, Central Park Place valued at $1,000 and to the plaintiff, $85 in cash and $245 in debts due; and, third, it awarded the plaintiff his separate property consisting of seven lots in Central Park Place, Phoenix, subject to the deed of trust above mentioned, and a concrete yard and business at 720 South Seventh Avenue, Phoenix. It is from this judgment the defendant appeals.
A number of errors are assigned but they can be considered under three or four propositions of law. It appears that on the day of the trial appellant moved for a continuance upon the ground that she was ill and unable to attend court. Upon this motion being made the court directed the county physician, Dr. J. D. Mauldin, to examine appellant and ascertain whether or not she could appear. After doing so he testified that he found her able to attend court and [42 Ariz. 194] that he so informed her. Dr. I. L. Garrison testified that she appeared before him the day before for treatment and that in his opinion her condition was such that it might involve risk for her to attend. After hearing the testimony of both doctors as to the condition of appellant the court denied the motion, and she attended the trial for nearly two days without, so far as the record discloses, any serious effects to her. A motion for a continuance is addressed to the sound discretion of the trial court and it is only when this discretion is abused that an appellate court will interfere. Arnett v. Peterson, 24 Ariz. 405, 210 P. 683. Clearly, there was no abuse of the court's discretion in this instance.
The second assignment is that the court erred in denying appellant's motion for a new trial upon the ground of newly discovered evidence. It was stated in the motion for a new trial that appellant learned after the trial that the real property set aside to appellee as his separate property had been transferred by him to a third party and then reconveyed to him by that party, both acts occurring during coverture, and that appellant did not then know this and was unable without reasonable diligence to find it out prior to the trial. The motion for a new trial is not supported by an affidavit showing that the evidence was newly discovered or that diligence had been exercised in an effort to learn of its existence. This should have been done (46 C.J. 324) and, in addition, the facts relied on to show diligence should have been recited in order that the court might know whether it had in fact been exercised.
Besides, it appears from the record that at the time of the trial appellant had, or should have had, knowledge of the fact claimed to have been discovered afterwards. It discloses that in the trial of a case in 1924, wherein the appellant in this case was seeking a divorce from appellee upon the ground of [42 Ariz. 195] desertion, the matter having been tried before a jury, the fact that the property had been conveyed by appellee to a third party was before the court, and necessarily reconveyance to him thereafter and prior to this action was during coverture. ...