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Flynn v. Allender

Supreme Court of Arizona

April 27, 1953

FLYNN
v.
ALLENDER.

Page 561

[75 Ariz. 323] Milburn N. Cooper, Phoenix, for appellant.

Robert E. Kersting, Phoenix, for appellee.

STANFORD, Chief Justice.

Margaret R. Flynn, plaintiff below, hereinafter designated appellant, appeals from a denial by the trial court of her motion to vacate an order quashing levy of a writ of execution and to grant a rehearing.

The facts are that Ellsworth Allender, defendant below, hereinafter designated appellee, and Frieda Allender, became indebted to appellant while they were husband and wife. Appellee and Frieda Allender were divorced on September 29, 1949. [75 Ariz. 324] Some time thereafter, but before February 16, 1950, appellant brought an action against appellee and Frieda Allender seeking to recover judgment against them for the sum of $1,000 together with interest at 6% from April 8, 1947. Judgment by default was taken by appellant for $1,000 together with interest as requested.

On the 16th day of February, 1950, appellee married his present wife, Ruth Allender. On August 8, 1951, appellee traded a 1947 Oldsmobile 98 Convertible automobile, which he owned at the time of his marriage to his present wife and which it is alleged by appellant was his sole and separate property, for a 1950 Model Oldsmobile Convertible Coupe. Appellee was allowed $1,095 on his 1947 Oldsmobile, and this together with $18 cash constituted the down payment necessary for the purchase of said 1950 Oldsmobile. The payments on the balance owing were made from the earnings of both appellee and Ruth Allender. At the time of this appeal the payments mentioned above amounted to some $683.65.

On March 12, 1952, appellant caused an execution to issue based upon the judgment she had obtained against appellee, and the sheriff levied on the 1950 Oldsmobile mentioned above, title to which was in appellee's name, as appellee's separate property.

Appellee filed a motion to quash the execution and to return said automobile to him, alleging as grounds for said motion that the automobile was the community property of appellee and his present wife, Ruth Allender, that the judgment held by appellant was based on a separate debt incurred by him before his marriage to his present wife, and that community property is not liable for the separate debts of either spouse or for any debts incurred by either spouse prior to marriage.

Page 562

The trial court granted appellee's aforesaid motion to quash and ordered the automobile returned to appellee.

Thereafter, appellant filed a motion to vacate the order quashing the levy and to grant a rehearing. The trial court heard said motion and denied it.

We believe that the three assignments of error presented by appellant for our consideration may be grouped together as one.

It is claimed by appellant that the lower court erred in quashing the levy made on the 1950 Oldsmobile for the reason that said car was the separate property of appellee and subject to being taken in satisfaction of the judgment against him. She contends that when the appellee traded in his 1947 Oldsmobile on the 1950 Oldsmobile, the latter acquired the same character as the former, viz., it became appellee's separate property. It support of this contention, appellant cites the following cases which hold that generally property purchased by either spouse with separate assets will remain separate property. Rogers v. Joughin, 152 Wash. 448, 277 P. 988; Horton v. Horton, [75 Ariz. 325] 35 Ariz. 378, 278 P. 370. See also 41 C.J.S., Husband and Wife, § 482, page 1020.

It is well settled in this jurisdiction that the character of property as separate or community is to be determined by its status as of the time of its acquisition. Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459; Giacomazzi v. Rowe, 109 Cal.App.2d 498, 240 P.2d 1020.

Section 63-302, A.C.A.1939, provides that:

'All property, both real and personal, of the husband, owned or claimed by him before marriage * * * shall be ...


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