APPEAL from a judgment of the Superior Court of the County of Maricopa.
J. C. Niles, Judge. Judgment affirmed in part, reversed in part and remanded with instructions.
Mr. Henderson Stockton and Mr. S. N. Karam, for Appellant.
Messrs. Lewkowitz & Wein, for Appellee.
[57 Ariz. 16] LOCKWOOD, C.J.
This is an appeal by Salim Ackel from a judgment rendered in a suit wherein Brigida Ackel was plaintiff and Salim Ackel was defendant and cross-complainant. The undisputed facts affecting the appeal may be stated as follows.
Plaintiff and defendant were married December 5, 1900, and up to the time of the granting of a decree of divorce in the present action were husband and wife. Of that union four children were born, all of whom were of full age at the time this proceeding was initiated. Principally through the business sagacity and labor of defendant the parties had accumulated community property which at one time was worth close to half a million dollars, and consisted mostly of real estate located in Maricopa county. During the depression which
started in 1932 this property, like other of the same character all over the land, depreciated considerably [57 Ariz. 17] in value and was heavily encumbered. In 1935 plaintiff and defendant formed a family corporation known as the Ackel Investment Company and deeded to it practically all of the community property. The court found on ample evidence this corporation was a mere form organized to delay creditors of the community, and its entire management and that of the community property remained at all times in defendant and he handled them as he saw fit. At some time in the early part of 1938 plaintiff became very dissatisfied with the existing relationship between herself and defendant, and commenced a suit for separate maintenance, setting up cruel and unusual conduct on the part of defendant. The matter came on for hearing in the superior court of Maricopa county, and on May 23, 1938, the court rendered judgment, finding in substance that to that time defendant had been guilty of no wrongful conduct nor acts towards plaintiff. This judgment was never appealed from and became final. Plaintiff evidently was not satisfied with the situation, and on July 20th filed a complaint asking for an absolute divorce from defendant and setting up therein cruel conduct occurring both before and after the separate maintenance action, which she alleged had caused her great mental and physical illness and made the continuance of the marital relation impossible. She asked for an absolute divorce and division of the community property, together with suit money and temporary alimony. After many preliminary and dilatory motions and pleas had been disposed of, defendant answered denying any conduct on his part justifying a divorce being granted to plaintiff, and cross-complained alleging that she had been guilty of cruel conduct and excesses towards him which made it impossible for him to continue the marital relation. The parties thus agreed upon the latter allegation, but disagreed vigorously as to who was responsible for [57 Ariz. 18] the situation. The matter finally came on for trial before the court sitting with a jury. A number of interrogatories were answered by the jury and in substance it found that each of the parties had suffered great mental anguish by reason of the situation, and that as a result of plaintiff's conduct, defendant shortly after the commencement of the action had left the marital home, but also impliedly found that defendant's conduct towards plaintiff was not unjustified. It further found that a large amount of property specified in the various answers to the interrogatories was community property, but failed to answer as to the nature of a certain piece of business property in Phoenix. The court itself, therefore, made a finding that this particular property was the separate property of defendant, and while it did not expressly adopt the findings of the jury on other matters, adjudicated practically all of the other property involved to be community property as found by the jury, divided it between the parties by specific parcels as it thought just, ordered that all of the community debts not specific liens against the real estate be paid by defendant and granted a decree of divorce in the following language:
"Now it is by the Court Ordered, Adjudged and Decreed that the bonds of matrimony, now and heretofore existing between plaintiff and defendant, be, and the same hereby are, dissolved."
It also ordered defendant to pay plaintiff $3,000 as attorney's fees and made this amount a lien upon his separate property. After this appeal was perfected, the trial court also ordered that defendant pay plaintiff $1,250 for costs and attorney's fees on appeal. No specific appeal was taken from this last mentioned order for the reason it is the contention of defendant that the order was wholly void because the court was [57 Ariz. 19] divested of any jurisdiction to make any order of this nature after the appeal was perfected.
There are twenty-eight assignments of error, grouped by defendant under eight propositions of law, which we consider on the general legal issues raised thereby. It is urged that the decree dissolving the bonds of matrimony above set forth is erroneous because under no theory of the case was plaintiff entitled to a divorce, and it should have been granted specifically to defendant. We have had a very similar situation in the case of Brown v. Brown, 38 Ariz. 459. 300 P. 1007, 1008. Therein we said:
"There are some fifteen assignments of error, which we shall consider on the legal propositions raised, and not seriatim. The first is that no valid decree of divorce was ever rendered in the case. This is based upon the theory that the judgment above set forth does not specify the grounds upon which it ...