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Henderson v. Henderson

Supreme Court of Arizona

January 26, 1942


APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed in part and reversed in part.

Mr. Lemuel P. Mathews and Mr. L. Verde Rhue, for Appellant.

Mr. Harlow H. Akers and Mr. John W. Murphy, for Appellee.


[58 Ariz. 515] McALISTER, J.

Jesse F. Henderson brought an action for divorce upon the ground of cruelty against Eva C. Henderson to whom he was married on September 4, 1937, and in his complaint alleged that the property owned by them belonged to the community and asked that it

Page 438

be awarded to him. The defendant answered denying the charge of cruelty and that the property described in the complaint was community property and by way of cross-complaint set up facts showing that the plaintiff was guilty of cruelty toward her and that the property claimed by plaintiff to belong to the community was fact her separate estate. The court granted the defendant a divorce on her cross-complaint and awarded her all the property involved in the action. The plaintiff appeals from this judgment and "from the whole thereof."

Both parties introduced testimony in support of their respective charges of cruelty and after hearing it the court accepted that of the defendant and [58 Ariz. 516] granted her a decree of divorce. It would serve no useful purpose to recite the testimony here and it is only necessary to say that it was sufficient to support the decree and such being the case, this court cannot do otherwise than affirm the order dissolving the bonds of matrimony.

The only error assigned on this phase of the case is that the defendant was not entitled to a divorce because her testimony was not corroborated by other evidence as required by section 27-804, Arizona Code 1939. There can be no question but that the acts of cruelty testified to by defendant disclose a cause of action upon that ground and while all of them were not corroborated, sufficient of them were to meet this requirement of the statute.

The principal questions presented by the appeal, however, relate to the manner in which the decree disposes of the property owned by the parties and in order to understand them a statement of the material facts regarding the acquisition and ownership of it is necessary. The record discloses that at the date of marriage the defendant was the owner of property of the value of more than $20,000 that had been distributed to her from the estate of her former husband, J. D. Rowe, who died in August, 1935, or had been bought with funds received by her from that source. In December, 1936, nearly a year before her marriage, she purchased the Bridge Auto Court at Wickenburg, Arizona, and paid $15,000 cash for it out of these funds and from that time on until her marriage operated it herself. About three weeks after their marriage, the plaintiff gave up his position in Miami, where he had been employed for some time by the Inspiration Copper Company, at a good salary, and went to Wickenburg to live with his wife, the defendant, at the Bridge Auto Court.

[58 Ariz. 517] Sometime subsequent thereto the defendant purchased a lot in Wickenburg, consisting of about three-quarters of an acre, known as the Bass property, and some months after this transaction purchased four acres adjoining it, known as the Harmon property, the deeds to both parcels being taken in the name of the defendant and the plaintiff as grantees. These two pieces of real estate, comprising almost five acres, with the improvements on them, constitute what is termed throughout the record as the Aztec Motor Inn and Trailer Court, and were conveyed to the defendant and the plaintiff "not as tenants in common and not as a community property estate but as joint tenants with right of survivorship," the deeds containing in addition this statement, signed by both grantees:

"The above deed is accepted and approved by the Grantees; it being the intention of the Grantees to acquire these premises as joint tenants with right of survivorship, and not as community property or as tenants in common."

The $850 paid for the Bass property came from the income from the Bridge Auto Court, and the $4,000 paid for the Harmon property from these sources: $2,000 from the proceeds of a mortgage for $5,000, executed by defendant on the Bridge Auto Court, in favor of a Prescott bank, and the other $2,000 by the execution by defendant and plaintiff of a mortgage in favor of C. E. Addams, in that sum, on the Aztec Motor Inn and Trailer Court itself. Nothing had been paid on either of these obligations at the time of the trial. It appears further that in addition to these two mortgages totaling $7,000, labor bills and federal housing administration loans, to the extent of $4,500 were placed on these two auto courts, but the record does not disclose whether all this sum was secured [58 Ariz. 518] by both auto courts, or whether a portion of it was secured by only one of them.

The record discloses that plaintiff had about $1,300 cash when married and that it was a part of $3,000 received by him in settlement of injuries suffered in an automobile accident. The court found, however, that none of this $1,300 went into the purchase of the Aztec Motor Inn and Trailer Court, or the improvement of it or the Bridge Auto ...

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