GLASSFORD et al.
Rehearing Denied Dec. 15, 1953.
[76 Ariz. 221] Neil C. Clark, Phoenix, for appellants.
Francis J. Ryley, George Read Carlock and Joseph P. Ralston, Phoenix, for appellee and cross-appellant.
JOHNSON, Superior Court Judge.
Admiral William A. Glassford and Deborah Leighton Glassford were married on August 25, 1920, in Vancouver, British Columbia. From 1902 to 1947, Admiral Glassford was continuously in the naval service of the United States, and during this period, he necessarily resided where stationed by military or naval assignments. His residences while in the service were many, and often in a foreign land, and some extended over a period of years; but all were temporary
and throughout the period of his service, Arizona was his permanent domicile.
In 1938, Admiral Glassford inherited from his mother 160 acres of farm land in Maricopa County as his sole and separate [76 Ariz. 222] property, and another 160 acres, as well as business properties, located in Phoenix, Arizona, which he owned jointly with his brother. These properties were being operated under a partnership agreement, and Admiral Glassford has been receiving his share of income each year. In May of 1949, he sold 160 acres of farm lands for the sum of $60,000.
In July of 1946, he filed a complaint for divorce against his wife, Deborah Leighton Glassford, in Maricopa County, Arizona.
Thereafter, the parties entered into a property settlement agreement dated the 23rd day of September, 1946.
The following are paragraphs of said agreement that are pertinent to the issues involved in this action:
'(1) The Husband agrees to pay to the Wife, during her lifetime, or until she shall remarry, twenty-five (25%) per cent of his gross income in monthly instalments commencing as of October 1, 1946, and that he will continue said monthly instalments irrevocably and unconditionally, regardless of any other source of income the Wife may have, until said Wife remarries. The gross income of said Husband shall be considered any assets or sums received by him from any source whatsoever.'
'(6) The Wife hereby waives, releases and relinquishes and bars herself of all right of dower in and to all real property and all legal right, title and interest in and to any and all personal property which the Husband may now own or hereafter own or acquire and in and to any and all right, title and interest in his estate or otherwise, except as to payments provided for in Paragraph one which by reason of the said marriage may hereafter be vested in her in the estate of said Husband, in the event of his decease; the Wife shall, upon request at any time hereafter, execute good and sufficient release or releases of dower or to the personal estate of said Husband, his heirs, executors, and administrators or assigns, or his duly authorized agent whom the Husband, his heirs, executors, administrators and assigns may designate, and will further, upon request of the said Husband, join him in executing any deed or deeds or conveyances or assignments of any real or personal property now owned or which may hereafter be owned or acquired by him.'
'(8) That each party hereto expressly waives and releases to the other any and all claim which he or she might have or might claim to have against the other by reason of any matter, cause or think whatsoever, from the date of their marriage aforesaid to the time of the sealing of these presents, except as to the payments hereinbefore provided for.'
'(9) It is mutually understood and agreed that in the event a decree of divorce[76 Ariz. 223] is granted in any Court of competent jurisdiction, then and in that event this agreement shall be made a part of said decree whether incorporated therein or adopted by reference and nothing herein contained shall be a bar or waiver of either of the parties proceeding in a Court of competent jurisdiction for the purpose of applying for a divorce a vinculo matrimonii. Provided, always, and it is hereby agreed, that if said parties shall become reconciled and resume cohabitation, then the in such case all the covenants and provisions herein contained shall become void but without prejudice to any action previously made or done hereunder or any proceedings on the part of either of the parties hereto in any respect of any antecedent breach of any of the covenants or provisions herein contained.'
The final order of divorce was entered on the 1st day of October, 1946, before the Superior Court of Maricopa County, and the agreement in question was incorporated in and made a part of the final decree of divorce.
Thereafter, Admiral Glassford married his present wife, Henrietta Sherwood Glassford; and having retired from the United States Navy on account of physical disability, he was employed by the Radio Corporation of America to go to Europe as its representative to promote good will and open the way for expansion of business activities of the corporation in Europe. In his capacity as such representative, the Admiral and his wife were expected to, and subsequently did, do an extensive amount of entertaining of foreign government representatives and business and industrial representatives in England and other European countries. He testified that it was expected and understood that in the performance of all such activities he would be assisted by his wife; and her ability and fitness to satisfactorily discharge the duties that would devolve upon her in such capacity were carefully considered and favorably determined by the executives of the Radio Corporation of America before the contract with him was made. For these services he was paid a salary of $1,000 a month.
His first wife, Deborah Leighton Glassford, claims that she is entitled under the property settlement agreement to one-fourth of the community income of the Admiral and his present wife, Henrietta Glassford, including the community salary earned by him in the performance of his contract with the Radio Corporation of America. For almost the entire contract period (until after he returned to America in September, 1949), Deborah Leighton Glassford received twenty-five per cent of the salary earned by him under the contract with the Radio Corporation of America. These payments to Deborah Leighton Glassford were discontinued after his return to America on advice of his counsel, upon the grounds that such income constituted the community earnings of the Admiral and his present [76 Ariz. 224] wife, Henrietta Glassford, and as such, were not subject to liability for his debts and obligations contracted prior to his marriage to Henrietta Glassford and that the property settlement agreement of September 23, 1946, being the separate and sole obligation of the Admiral, could not be made a charge upon the community income of his subsequent marriage with Henrietta Sherwood Glassford. Upon the payments from the Radio Corporation of America salary being discontinued, Deborah Leighton Glassford filed a petition in the original divorce action in the Superior Court of Maricopa County, asking for an order to have him cited for contempt for his failure to pay her one-fourth of the community earnings of the Admiral and his present wife, Henrietta Sherwood Glassford.
The petition was dismissed by the trial court upon the ground that the decree of divorce contained no provision for alimony and that the court had no jurisdiction in the divorce action to construe the contract above referred to between the Admiral and his first wife and to incorporate such construction into the decree as an alimony award. No appeal was taken from the order dismissing the petition. We agree with the trial court that ...