R. L. TYSON, Appellant,
LELA TYSON, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed in part and affirmed in part.
Mr. Theodore G. McKesson, for Appellant.
Messrs. Laney & Laney, for Appellee.
[61 Ariz. 330] DE CONCINI, Superior Judge.
Matters involved in this case are founded upon a reconciliation contract between husband and wife. The parties separated in July, 1937, and the wife filed a suit for separate maintenance. The husband answered and cross-complained for a divorce. The wife amended and asked for a divorce and a property settlement. At the request of both parties, their respective actions were dismissed.
Simultaneously the parties entered into a "Property Settlement" and a "Reconciliation Agreement" on February 1, 1938. Lela Tyson, the appellee, plaintiff [61 Ariz. 331] below, brought this suit for enforcement of the provisions of the Reconciliation Agreement.
The court made findings of fact and conclusions of law to which the defendant Tyson objected and appealed therefrom citing seventeen assignments of error based on five propositions of law and further that the findings of fact are inconsistent with the evidence.
There is evidence in the record to sustain the following excerpts of findings of fact of the lower court; that in the month of July, 1937, the parties were separated and the appellee instituted her action for separate maintenance in the Superior Court of Maricopa County; both parties amended their pleadings and asked for a divorce; while that action was pending the parties made and entered into two certain writings, entitled "Property Settlement Agreement" and "Reconciliation Agreement" which were executed at the same time and, taken together, constituted the entire written agreement between the parties.
In the first agreement the appellee agreed and did execute a deed and bill of sale to all of their community property to her husband the appellant, and she agreed that the property should be considered his separate property; the husband, among other things, agreed and settled $5,000 upon her in bonds and notes, which was to be her separate property. The parties further agreed to dismiss their respective divorce actions.
The "Reconciliation Agreement" provided that they would condone each other's actions prior to July 28, 1937; approved the aforesaid "Property Settlement" and again live and cohabit as man and wife. They further agreed that the husband could expend reasonable expenses for his three grown children by a prior marriage and he would support the wife and the three
children of the parties. Paragraph 8 of [61 Ariz. 332] the "Reconciliation Agreement" is important and is quoted verbatim:
"8. It is further agreed that in the event said parties live together as husband and wife and do not separate for a period of three years from and after February 1, 1938, and said parties are on the 1st day of February, 1941, living together as husband and wife happily and peacefully then the party of the second part herein, R. L. Tyson, agrees to execute proper conveyances to the party of the first part wherein she, on said 1st day of February, 1941, is to receive a one-half interest in all property then owned by R. L. Tyson, including real and personal property, with the exception of the house and three lots in Tucson, Arizona, more particularly described as 130 East Helen Street, Tucson, Arizona.
"If said parties are living together satisfactorily and happily on February 1, 1941, the wife on receiving a one-half interest in all real and personal property from said R. L. Tyson, the said party of the first part shall account to the party of the second part for the sum of Five Thousand ($5,000.00) Dollars with interest thereon at the rate of five (5%) per annum which said sum shall also, on February 1, 1941, become the community property of the husband and wife, if said first party receives the proper conveyances of a one-half interest in the property in the last paragraph above mentioned."
The lower court further found that the appellee carried out her part of the agreement except insofar as she was prevented therefrom by the wrongful conduct of the appellant; that the appellant with the purpose of compelling his wife to separate from him and thereby evade carrying out their contract adopted a course of cruel conduct toward her, both physical and otherwise; and carried it on continuously from about two months after the contract was signed until after February 1, 1941, when she brought this suit.
[61 Ariz. 333] That the parties lived together as husband and wife continuously from February 2, 1938 to December 6, 1940, when he left for the avowed purpose that he would not be bound under the contract to convey her one-half of his property. The lower court further found that they continued to have sexual relationship after December 6, 1940, although he did not reside in the same house.
The judgment of the lower court in holding that the wife was entitled to specific performance based on the findings of fact was correct. Where there is evidence in the record to sustain the lower court's findings as there was in this case, this court will not disturb those findings even though there was contradictory evidence as well.
While the facts in this case were that the parties did not live together peacefully and happily for a period of three years as provided in the contract, yet it was no fault of the wife's because the husband ...