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Long v. Stratton

Supreme Court of Arizona

November 1, 1937

CURTIS W. LONG, Petitioner,
v.
LEE N. STRATTON, Judge of the Superior Court of Graham County, Respondent

Original proceeding in Certiorari. Proceeding had in lower court affirmed.

Mr. Benjamin Blake and Messrs. Woolf & Shute, for Petitioner.

Mr. Rouland W. Hill, for Respondent.

OPINION

[50 Ariz. 428] ROSS, J.

Petitioner Long was, on February 23, 1937, cited by respondent to show cause why he should not be punished for contempt for failure to pay to his divorced wife, Waldy O. Long, monthly installments as provided in the decree of divorce; and he, contending that respondent was without jurisdiction to punish for contempt, sued out a writ of certiorari that this court might review the proceedings.

The grounds upon which petitioner predicates his contentions are: (1) That the divorce complaint does not state a cause of action; and (2) that the parties having made a community property settlement between themselves it was binding upon them as also upon the court, and that the court could not in its decree of divorce provide for alimony to be paid the wife, and its attempt to do so was null and void. In view of these contentions, we set out such portions of the complaint for divorce and of the agreement to settle [50 Ariz. 429] community property rights and of the decree as are material to the questions raised.

The complaint was filed in the superior court of Graham county on January 20, 1934, and, after alleging residence, the marriage, that there were no children, alleged and prayed as follows:

"IV. That since the marriage the defendant has treated the plaintiff in a cruel and inhuman manner and in particular as follows: that the defendant has cursed

Page 940

and abused the plaintiff and accused her of many acts not becoming to the dignity of the marriage relation and has threatened to use physical violence, to-wit, by slapping her."

"VI. That there is community property belonging to plaintiff and defendant of questionable value."

"VII. That together with this complaint there is filed an agreement of separate maintenance and settlement of property rights, marked 'Exhibit A,' which has been agreed upon by the plaintiff and defendant and the plaintiff is asking this honorable court to approve this settlement of property rights.

"Wherefore, Plaintiff demands judgment: ...

"II. That the court approve the agreement of property settlement marked 'Exhibit A' in plaintiff's complaint," and for equitable relief.

The judgment, dated February 19, 1934, after reciting the presence of plaintiff and her attorney, states petitioner, as defendant, did not appear, although ...


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