ARTINA W. SCHWARTZ, Appellant,
M. H. DURHAM, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Henry C. Kelly, Judge. Judgment reversed and cause remanded with instructions.
Mr. John M. Schwartz, of Los Angeles, California, for Appellant.
Messrs. Mathews & Bilby and Mr. T. K. Shoenhair, for Appellee.
[52 Ariz. 258] LOCKWOOD, J.
This is an appeal by Artina W. Schwartz, hereinafter called appellant, from a judgment in favor of M. H. Durham, hereinafter called appellee. The facts essential to a determination of this case are not in serious dispute, and may be stated as follows:
Appellant and appellee were married on November 12, 1919, and up to November, 1931, were husband and wife. During their coverture they acquired certain community property, among it being a gasoline filling station in Tucson, Arizona, together with the various appurtenances thereto. In December, 1929, appellee entered into a contract with the Firestone Tire & Rubber Company of California, a corporation, hereinafter called the California company, whereby he agreed to purchase two hundred shares of stock in Firestone Service Stores of Phoenix, a corporation, hereinafter called the Arizona company, and in payment therefor gave to the California company a promissory note, a guaranty of certain accounts receivable, and various other things of value. Thereafter, and in 1931, appellant filed an action for divorce. Before it was heard, the parties made a certain agreement settling their community rights. Under this settlement appellant conveyed to appellee by a bill of sale the two hundred shares of stock in the Arizona company, and a small amount of furniture. Appellee agreed to pay to appellant thirty-five dollars per month until she remarried, and gave to her certain household [52 Ariz. 259] furniture, and they executed a written agreement which recited, among other things:
"Whereas prior to the filing of such action for divorce a settlement and division of all the community property has been made between said parties;...
"Now therefore, it is hereby agreed between the parties hereto that the terms of this agreement may be entered as a part of the divorce decree to be entered in said divorce action, and shall be final as to the amount of alimony to be paid by defendant to said plaintiff."
The evidence also shows that at the time this written agreement was executed appellant stated:
"Yes, the stock and the business are Milt's and I am leaving town and I don't want to hamper Milt; I want him to have it."
On November 10, 1931, a decree of divorce was rendered which recited the agreement of the parties above referred to in regard to alimony and a settlement and division of the community property, but adjudged as follows:
"It is ordered, adjudged and decreed, that the court, by virtue of the power and authority therein vested, and in pursuance of the statutes in such cases made and provided, does order, adjudge and decree that the bonds of matrimony existing between plaintiff, Mary A. Durham and said defendant, M. H. Durham, be dissolved, and the same are hereby dissolved accordingly and the parties freed from the obligations thereof.
"It is further ordered that the plaintiff's name be changed to Mary A. White, by which name she was known and called prior to entering ...