[76 Ariz. 413] Lewis, Roca & Scoville, Phoenix, for appellant.
Axline & Shelley, Holbrook, for appellee.
Plaintiff Jeanne H. Wood has appealed from certain provisions contained in the judgment entered in the divorce action against her husband, Thomas Edward Wood, defendant-appellee.
The evidence adduced at the trial shows the parties became acquainted while attending the Arizona State College at Tempe, and were married May 28, 1950. That fall defendant was employed at an annual salary of $2,400 to teach a nine-month school at Pinedale, Navajo County, Arizona. The young couple, both in their early twenties, set up housekeeping in rented quarters in a private home in Pinedale. A son, Thomas Edward Wood IV, was born April 27, 1951. During the summer vacation period of that year, defendant supplemented his income by working for the U. S. Forest Service, for which he received the sum of $782. The couple's voyage on the matrimonial sea was a turbulent one, due in part no doubt to the fact that plaintiff was a city girl who came from a fine home, provided by loving, indulgent, and well-to-do parents, in Los Angeles, California, and found difficulty in
adjusting herself to a new life in a strange community amid the somewhat primitive conditions found in their new home. They came to a parting of the ways on November 4, 1951; an attorney was employed by plaintiff and her father, and three days later the instant action for divorce was filed. Defendant answered and counterclaimed for divorce and custody of the minor. The case was tried to the court sitting without a jury, on February 19 and 20, 1952. On the following morning the court entered a minute order for judgment, and formal written judgment in strict conformity therewith was entered on March 5th. This judgment provided (1) that plaintiff be granted a divorce from defendant and that the bonds of matrimony theretofore existing be dissolved; (2) that the plaintiff be awarded custody of the minor child, with the right to take said child to the state of California to reside there with her, on condition that plaintiff by a day certain furnish bond in the sum of $3,000 to ensure that she would not initiate any litigation in any court outside the state of Arizona to change the custody or otherwise seek to modify the judgment of the court; and to ensure that she would comply with the court's order and bear the expense of bringing the child to and returning him from Arizona for an annual visit with the father at his parents' home in Chandler, Arizona; (3) that defendant be required to pay the sum of $50 per month for support of the child; (4) that each party bear his own costs, expenses, and attorney's fees. It appears there was no community property to divide.
On March 19, 1952, plaintiff filed a notice of appeal from the following portions of the judgment:
[76 Ariz. 414] '1. From that portion requiring each party to pay his own costs and attorney's fees.
2. From that portion requiring her to post bond guaranteeing that she would comply with the court order and that she would not seek its modification outside Arizona.
3. From that portion requiring her to bear the expense of bringing the child to and returning him from Arizona.
Plaintiff strenuously objects to the attempt to place in the record on appeal, by a supplemental abstract, certain minute entries made by the trial court on March 28 and April 1, 1952. She asserts the court attempted to bolster the record as it then stood, and to support the orders theretofore entered, by incorporation into the record by means of nunc pro tunc orders, matters which did not occur in open court, as well as other matters of which the court erroneously took judicial notice. We deem it unnecessary to consider the lawfulness of these orders for they are superfluous, and the matter can be determined wholly upon the reporter's transcript of the evidence taken at the trial.
There are but three assignments of error attacking the provisos in the judgment of which complaint is made. In each instance it is urged the trial court erred and unreasonably abused its discretion in requiring plaintiff to do the three things heretofore enumerated.
We shall first consider the assignment that the court erred in requiring plaintiff to pay her own attorney's fees and costs. This is claimed to be an abuse of discretion 'for the reason that the evidence showed the husband to be an ablebodied wage earner and showed her to be without property or income.' The evidence on this point, considered in the light most favorable to sustaining the requirement, shows that defendant was able-bodied, had an earning capacity for the previous year of $3,182, but at the time of trial had not accumulated 'any worldly goods'. On the other hand it appears that plaintiff (while she may not have earned it) at all times during their married life had a separate bank account, and 'Whenever she wanted anything * * * she would write out a check and buy it. * * *.' While the amount in the bank account was unknown to defendant, it does appear that plaintiff never lacked for money and was able to make frequent trips to her parents' home in California without financial help from her
husband. Her mother testified they gave plaintiff an allowance of $100 per month. Plaintiff testified 'I have a little money provided me by my father.' When it came to employing counsel there was no request for attorney's fees pendente lite because of any inability on her part to finance the lawsuit. The attorney was paid in ...