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Armstrong v. Armstrong

Supreme Court of Arizona

January 16, 1951

ARMSTRONG
v.
ARMSTRONG

Judgment affirmed.

V. L. Hash and Virginia Hash, of Phoenix, for appellant.

George T. Wilson, of Phoenix, for appellee.

Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.

OPINION

Udall, Chief Justice.

[71 Ariz. 276] Elizabeth Armstrong, defendant-appellant, has prosecuted this appeal from a judgment rendered in a divorce action and more particularly that portion thereof which divided the property between her and William Cecil Armstrong, plaintiff-appellee. The parties will hereafter be designated as they were in the lower court.

To understand the issue presented, a brief recitation of the facts is necessary. Plaintiff and defendant were first married on August 16, 1926. After nearly 20 years, marital difficulties developed and on March 15, 1945, the parties were divorced by a decree of the superior court of Maricopa County, Arizona. By the terms of the decree the husband was awarded certain personalty including cash, bonds, an automobile, etc., and the defendant wife was given all of the community real property, which then consisted of lot 13, block 2, Kenwood Addition to the city of Phoenix, located at 1522 East Willetta Street. The plaintiff husband, on the same date that the decree was entered and in conformity

Page 169

therewith, executed in favor of defendant a quitclaim deed to this home tract (hereafter called the Kenwood property).

Approximately six months after the parties were divorced, they decided to remarry and did so on September 24, 1945. During the period of the second marriage the plaintiff, through his employment with the Hamman-McFarland Lumber Company, was permitted to invest in several subdivisions sponsored by that company. The initial investment in these enterprises amounted to $ 6,000, one half of this amount came from the sale of bonds belonging to plaintiff and the other one half from a loan secured by a mortgage on the Kenwood property. The note and mortgage evidencing the indebtedness were jointly executed by the parties. Their investments proved to be profitable and the parties ultimately accumulated a house, located at 3526 East Taylor street, Phoenix, Arizona; certain other real property, described as the Sasse lots; an equity in 4.45 additional [71 Ariz. 277] acres of realty on which there remained due $ 3,800 of the purchase price; certain furniture for both the Kenwood property and the Taylor street property, and a second-hand Buick automobile. In addition the parties made certain improvements on the Kenwood property, i.e., the roof was repainted, interior redecorated, and insulation installed.

Their second marital venture did not fare as well as their investments, and on December 18, 1947, plaintiff brought the instant suit for dissolution of the marriage. Plaintiff alleged, and throughout the trial maintained, that all of the above holdings (including the Kenwood property) were community property. At the trial he testified: "We went back together and were remarried. All of our holdings were again billed as husband and wife, our bank accounts were made joint, and everything else went back as it was prior to the first decree, so that we were just remarried as we were again."

Notwithstanding that defendant in her answer admitted that the Kenwood property had been accumulated as community property, on the day preceding the trial she filed a counterclaim alleging that it was her sole and separate property, and throughout the trial she maintained this position. As a result of the decree in the first divorce proceedings her latter position is unassailable, but it does not change the legal result in the instant case.

No findings of fact or conclusions of law were requested by either party and hence none were made by the court as a basis for the decree entered October 18, 1948. This decree followed the pattern laid down in Brown v. Brown,38 Ariz. 459, 300 P. 1007, i.e., the bonds of matrimony were dissolved without fixing the blame on either party. It is conceded by both parties that the trial court considered the two marriages as ...


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