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Collier v. Collier

Supreme Court of Arizona

March 31, 1952

COLLIER
v.
COLLIER

Affirmed in part, reversed in part, and cause remanded.

Alexander B. Baker and Harold E. Whitney, of Phoenix, for appellant.

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

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

OPINION

La Prade, Justice.

Page 538

[73 Ariz. 407] This appeal is from a judgment and denial of a motion to vacate and set aside judgment decreeing that plaintiff (appellee here) be granted an absolute divorce from defendant (appellant) and ordering, adjudging and decreeing that plaintiff have and recover from the defendant the sum of $ 9,921.16, and to secure the payment of which a lien was fixed upon the real estate held by the parties under a joint tenancy deed, and adjudging "any other property above the property herein described and particularly disposed of by this judgment, * * * to be the community property of plaintiff and defendant." The judgment further ordered that "the household and kitchen furniture located on the hereinbefore described premises be awarded to plaintiff as her sole and separate property" [73 Ariz. 408] and that "the truck, plumbing tools and equipment be awarded to defendant as his sole and separate property." The decree also ordered defendant to pay additional attorney fees for plaintiff in the sum of $ 100, and that plaintiff be restored to her maiden name of Zelpha Banta.

1. The court in its findings of fact found that the property described in the complaint was held in joint tenancy.

2. That the household and kitchen furnishings located on the property were the separate property of the plaintiff and in the decree set them over to her as and for her sole and separate property.

3. That the truck and plumbing tools and equipment referred to in the complaint were the separate property of the defendant and in the decree set them over to him as and for his sole and separate property.

4. That plaintiff advanced the sum of $ 9,921.16 from her separate funds for improvements upon the said real estate hereinbefore described, and that she was entitled to recover the said sum out of the joint tenancy as her sole and separate estate.

This last numbered finding of fact was repeated as a conclusion of law and there was added thereto the following words: "and that any amount above the sum of $ 9921.16, which is the value of the said property, is to be the community property of plaintiff and defendant." (Emphasis supplied.)

As an additional conclusion of law, the court found: "That plaintiff is entitled to a lien upon the said real estate hereinbefore described and any and all interest which the defendant has in and to the said real estate by virtue of the joint tenancy therein in the amount of $ 9921.16, together with interest thereon at the rate of six per cent per annum from date of judgment to secure payment of the aforesaid sum, as

Page 539

her sole and separate estate, and that any interest which the parties might have as community property are subject to the lien ...


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