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Schwartz v. Schwartz

Supreme Court of Arizona

May 16, 1938

HARRIET D. SCHWARTZ, Appellant,
v.
WILLIAM A. SCHWARTZ, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment affirmed.

Messrs. Struckmeyer & Flynn, for Appellant.

Messrs. Hayer & Allee, for Appellee.

OPINION

[52 Ariz. 106] ROSS, J.

This is an appeal from that part of the judgment and decree of divorce dividing the community proper. The divorce was given to the appellant upon her cross-complaint, as also the custody of the fifteen year old minor child, Katherine, the only issue of the marriage. This latter part of the decree stands unchallenged.

During the marital relations from August, 1918, to June, 1936, when such relation was judicially dissolved, [52 Ariz. 107] the community had accumulated considerable property. Most of this property consisted of

Page 502

the savings from the appellee's professional income, who during all the time was a physician and surgeon located and practicing in Phoenix, Arizona. He had only $1,000 to begin with. According to the record, such income, after deducting the family living, was invested in real estate, stocks, bonds, and life insurance and annuities. These were treated as assets of the community. An exception was the home at 721 West Palm Lane, Phoenix, which, together with the furniture, was in 1929 bought and paid for out of the community income and given to the appellant as heres. The purchase price of the home was $10,000. The improvements thereon cost $2,000 and the furnishings $3,000 to $4,000.

In 1930 the relations of the parties became so strained that appellee took rooms at the Atizona Club and ceased living at the home. They have not lived together since that date as husband and wife, but appellee continued his parental attention to his child, Katherine, by visiting her at the home from thime to time and by making provision for her present and future care and education. He also gave appellant for the maintenance of the home $500 per month for 1929, 1930, and 1931, and $400 per month for 1932, and thereafter $250 to $300 per month.

On November 24, 1931, and after they had ceased to live together, the appellee indorsed over to the First National Bank of Arizona stocks, bonds, and secured real estate mortgages belonging to the community of the value of $47,208.43 in trust for the use and benefit of appellant and the minor child, Katherine. In the trust estate was $10,000 belonging to appellant, being a sum she had inherited and which had been invested in stocks and other securities, so that the trust estate amounted to $57,208.43. There should be added to this [52 Ariz. 108] the value of the home and its furnishings to ascertain the total of the appellant's assets.

The appellee retained of the community property then in his possession and thereafter acquired through his earnings approximately $72,875.10. Included in this are bills receivable in the sum of $16,390.35, estimated as being worth around $9,000; also various insurance and annuity policies with a cash surrender value of $25,952.77. The appellant was originally named as the beneficiary in these policies, or most of them, but they have been changed to designate Katherine, who was at the time of the trial thirteen and one-half years old, as the beneficiary.

Out of the community provision for Katherine had been made as follows: Paid-up annuities taken out in 1931 and 1933 by appellee in the sum of $12,802.77, and a savings certificate maturing in 1938 for $10,000. The appellee also paid to the New York Life Insurance Company the sum of $500, for which said company agreed to send Katherine every year on her birthday a check during the rest of her life, which amounts to approximately $20 a year.

The figures given may not be accurate but are approximately so.

The court's decree divided the community property by giving to the appellant the trust estate and by giving to appellee that portion of the community in ...


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