Rehearing Denied March 22, 1948.
Appeal from Superior Court, Maricopa County; James A. Walsh, Judge.
Judgment affirmed as modified and cause remanded with directions.
Alice M. Birdsall, of Phoenix, for appellant.
George T. Wilson, of Phoenix, for appellee.
Thomas, Superior Judge. Udall, Justice (specially concurring). Stanford, Chief Justice (dissenting).
Thomas, Superior Judge.
[67 Ariz. 276] A brief statement of the facts involved in this case is deemed essential for a proper understanding of the law involved in the premises.
Pearl C. Porter, appellant and cross-appellee, and Harold C. Porter, appellee and cross-appellant, will be, for the sake of convenience, hereinafter referred to as they appeared in the lower court, plaintiff and defendant, respectively.
The above-named parties were married December 25, 1928, and with brief separations, lived together as husband and wife until August, 1943. Two children were born of the marriage; namely, Anita Jean, born January 7, 1930, and Earl Clark, born December 19, 1932.
At the time of the above marriage, defendant owned real and personal property consisting in the main of a one-third interest in the N. Porter Saddle & Harness
Company, a partnership, engaged in the manufacture and sale of leather goods. Shortly thereafter the partnership was converted into a corporation; the defendant was then issued 408 1/3 shares of the capital stock of the corportion (hereinafter referred to as Porter & Company) which corresponded to his one-third interest in the partnership. Defendant also owned at the time of his marriage a one-half interest, with his uncle, in the Porter Livestock Company, a partnership, possessed of approximately five thousand head of sheep and certain grazing rights in Northern Arizona. Together with his uncle, defendant also owned a one-half interest in a 320 acre ranch at Laveen, Arizona, and a furnished home situated on a 2 1/2 acre plot of the above ranch, which plot had been deeded to him by the partnership. Plaintiff and defendant moved into the home a few weeks after their marriage. Plaintiff, at the time of the marriage to defendant, possessed no property nor financial means and acquired none independently of the community during the marital period.
During the first year of the marriage, defendant was employed by the Porter Livestock Company at a monthly salary of $ 125. Thereafter, excepting for several interruptions caused by serious illnesses, defendant worked for Porter & Company. There is no claim nor evidence that he was paid by Porter & Company more than was commensurate with the duties he performed, or that he contributed any unusual talent or skill essential to the financial success of the corporation.
[67 Ariz. 277] Prior to and at all times during the marriage, defendant transacted his personal financial affairs through Porter & Company, the corporation in effect serving as his banker. By this arrangement defendant was enabled, throughout the marriage, to keep a record of his income from all sources with Porter & Company and thereby obviate the necessity of an individual bank account.
At the inception of the trial a certified public accountant was appointed by the court to act as a master, to audit the books of Porter & Company with reference to the property rights of plaintiff and defendant. The master's report, embracing the accounts of defendant with Porter & Company between the years 1930 and 1944, inclusive, was filed and received in evidence. Respecting his audit of the Porter & Company books, the master made this observation: "* * * but that is one of the things about the accounting that is kept by Porter & Company, they are not a bit niggardly in their expenditure of man power in writing up their accounts, they itemize so many things in the ledger it is plainly evident that one can look at the account and gather a very clear picture of what took place. * * *"
Approximately three weeks after the marriage, plaintiff and defendant opened a joint or community account in a Phoenix bank to serve as a depository for defendant's earnings from his employment, and by means of it to meet the community expenses. Such an account was maintained throughout the marriage with the exception of approximately two years (September 1934 to September 1936) and a break between 1939 and 1940.
The evidence was rather conclusive that during the entire marital period, defendant's salary check or its equivalent was deposited by the bookkeeper for Porter & Company to the joint bank account of plaintiff and defendant, or delivered to plaintiff in person. It is conceded, and the evidence abundantly proves, that defendant's salary was at all times inadequate for the maintenance of the community expenses and that as a result therefrom he drew monies from his personal account at various times during the marriage to meet the deficiency of the household needs.
Somtime subsequent to the marriage, defendant disposed of his one-half interest in the Porter Livestock Company partnership for $ 9,253.79; his one-half interest in the Laveen Ranch for $ 16,495.83; and his home situated on the Laveen Ranch for $ 1,814.76. With the above sums, defendant's personal account with Porter & Company was credited, as well as dividends from his stock in the corporation, which during the marital period totaled the sum of $ 96,696.21. During the existence
of the marriage, purchases were made of a home in Tucson, Arizona, which was afterwards sold; of a home in Phoenix, Arizona; a one-half interest in three cattle [67 Ariz. 278] ranches in Gila County, Arizona; a Packard automobile; a house trailer; a motorcycle; two insurance policies, found by the lower court to have at the time of the trial a cash surrender value of $ 4,573.60. The above real and personal property, as well as cash in the sum of $ 4,410.20, was possessed by the parties at the termination of the trial.
Plaintiff was awarded a decree of divorce from defendant; the custody of the two minor children; alimony in the sum of $ 200 per month and support money for the said minor children in the sum of $ 150 monthly. The trial court further decreed that the Phoenix home, the Packard automobile, the trailer and motorcycle, the two insurance policies and the cash item of $ 4,410.20, were community property of plaintiff and defendant. The court decreed that defendant was the owner, as his separate property and estate, of 408 1/3 shares of capital stock of Porter & Company corporation; also one violin, one ceder chest with contents (unknown), one Remington picture, one Birdseye maple dresser, chair and foot stool; also an undivided one-half interest in the three cattle ranches in Gila County, Arizona (described by metes and bounds).
As her share of the community property, plaintiff was awarded the Phoenix home and furnishings, with the exception of the articles above enumerated as being the separate property of defendant, and the Packard automobile. The Phoenix home was evaluated by the court at $ 15,000, and defendant ordered to satisfy a then existing lien on said home of approximately $ 2,000, and to pay plaintiff $ 750 for court costs and attorney fees.
Defendant was awarded as his share of the property found to be community property, the trailer, motorcycle, the two insurance policies and the cash item of $ 4,410.20. To secure payment of alimony and support money for the minor children, as provided in the decree, a lien was fixed by the court on defendant's 408 1/3 shares of the capital stock of the Porter & Company corporation.
No appeal is taken from the provisions of the decree awarding plaintiff a divorce and custody of the minor children. Plaintiff makes twenty-five assignments of error, which may be grouped into three propositions of law stated as follows:
"First, the determination of the community property rights of appellant in various property, both personal and real, acquired during sixteen years of married life throughout which time property of the parties had been commingled, without segregation, title generally taken in the names of both parties and income from all of same returned as community income, the trial court having held the greater part of this property to be appellee's separate property.
"Second, an abuse of judical discretion in making division of that property which the court held to be community because [67 Ariz. 279] it was not made 'in accordance with justice and right', the court having awarded to appellee what is contended to be a wholly excessive and unjust share thereof, including all available cash and credits, this notwithstanding appellee was found to have been guilty of all charges made by appellant in her complaint, and was also left by the decree with extensive and ...