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Fox v. Weissbach

Supreme Court of Arizona

July 6, 1953

FOX
v.
WEISSBACH.

[76 Ariz. 92] Jack Cavness, of Phoenix, for appellant.

Page 259

Herbert Mallamo, of Phoenix (Leslie Parry, Phoenix, of counsel), for appellee.

UDALL, Justice.

This is an appeal from an order denying a motion to quash levy of execution on a Buick automobile. The correctness of the order primarily depends upon the trial court's rulings on evidentiary matters.

[76 Ariz. 93] The undisputed facts are that appellee, W. W. Weissbach (as plaintiff), brought suit in the superior court of Maricopa County against defendants John H. Fox and Juanita Evans Fox, his wife, and secured a judgment against both defendants in the sum of $450, with interest and costs. In the interval between initiating the suit and judgment the defendants were divorced. Thereafter, the sheriff levied upon a 1948 Buick convertible coupe under a general execution. Appellant Juanita Evans Fox moved to quash the levy upon the ground that the judgment was a community obligation, whereas the automobile levied upon had at all times been her sole and separate property. A hearing was held at which evidence, both oral and documentary, was adduced. At the conclusion thereof the court denied the motion to quash levy of execution, and struck all of appellant's evidence tending to prove the Buick car was her separate property. A supersedeas bond was given and this appeal followed.

Appellant's two assignments of error are, in substance, (1) that the trial court erred in refusing to quash the levy of execution for the reason that said levy subjected the separate property of the appellant to the payment and satisfaction of a community obligation, and (2), that the court erred in striking the competent testimony presented by appellant tending to prove that the automobile seized by the sheriff was not subject to execution in satisfaction of appellee's judgment.

It is the law in this jurisdiction that (a) a debt incurred during coverture is presumed to be a community debt in the absence of a contrary showing; (6) the separate property of a member of a community is not liable for the payment of a community obligation.

When the debt was incurred the defendants were man and wife. By the judgment the debt was established as a community obligation, hence it could only be satisfied from community assets. Therefore, the crucial question presented is whether the Buick car was a community asset or was it from the beginning the separate property of appellant, Juanita Evans Fox?

At the hearing on the motion to quash the trial court took judicial notice of the file in divorce action No. 31843, entitled Juanita E. Fox, plaintiff, v. John H. Fox, defendant. The decree, entered October 9, 1951, granting the divorce to plaintiff, ordered

'that the following described property is awarded to the plaintiff as her sole and separate property; * * * One Buick automobile.'

Dehors the judgment it appears from the unverified complaint for divorce that appellant alleged therein, among other matters,

'Par. IV: That plaintiff and defendant have accumulated as community[76 Ariz. 94] property, the following: Household furnishings--one Pontiac car--one Buick car * * *'. (Emphasis supplied.)

and the judgment recited:

'the court * * * finds that all of the material allegations of the complaint are true; * * *.'

It is the position of the appellant that she was entitled to show the car in question was, from the date of its acquisition, her sole and separate property and that she did not authorize and was not aware of the allegation in the complaint to the effect that the car in question belonged to the community. All of appellant's efforts to establish these matters--which included an offer of a certificate of title issued in her name, as well as her own testimony and that of her former husband--were effectually blocked when the ...


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