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Smith v. Smith

Supreme Court of Arizona

December 29, 1960

Don Poggi SMITH, Appellant,
Stella Mae SMITH, Appellee.

Page 184

[89 Ariz. 85] Charles Christakis, Phoenix, for appellant.

Paul H. Primock, Phoenix, for appellee.

JENNINGS, Justice.

This appeal involves alimony, the aftermath of a divorce suit. Don Poggi Smith, hereinafter referred to as plaintiff, instituted a suit against his wife, Stella Mae Smith, hereinafter referred to as defendant, on the ground of alleged cruelty. Defendant filed a general denial and cross-complaint, in which she prayed for a decree on the grounds of cruelty. The trial court rendered a decree in defendant's favor, awarding her a divorce from plaintiff; care, custody and control of the minor child, the sum of $150 per month permanent alimony from plaintiff, commencing with the first day of March, 1958, and the sum of $100 per month for the support and maintenance of the minor child. Defendant was also awarded a 1957 Ford automobile, all personal property in her possession, two lots owned by the parties, the sum of $5,000 as and for defendant's share and interest in the personal property owned by the parties, and the sum of $250 as and for the defendant's attorney fees. Earlier in the trial the court had awarded the defendant $750 attorney's fees pendente lite, and another sum of $250 for appraisal fees.

Also, of prime significance, at the trial the evidence showed that the plaintiff and defendant mutually sold their farm land consisting of 160 acres of land for the sum of $175,000, each receiving $51,603.45 of the down payment.

The plaintiff and defendant then paid the encumbrance on the land of approximately $18,000 each, leaving them a balance of $33,603.45 each. The evidence showed that the balance of $35,000 from the sale was [89 Ariz. 86] being paid in semiannual installments at 5% interest every January 1st and July 1st of each year and that at the time of the trial each had received over $1,300 as their respective one-half shares of said installments.

Plaintiff contends that the lower court erred in awarding the defendant any alimony, or in the alternative, awarding the defendant the amount of $150 and based this contention on the premise that there was no evidence to provide a basis for so holding. The plaintiff also contended in his second and third assignments of error that the lower court erred and abused its discretion in awarding the defendant attorney's fees in the amount of $750 pendente lite on December 10, 1956; the sum of $250 at the conclusion of the trial, and $250 for appraisal fees for the reason that the defendant land ample means to pay her own fees. In regard to the appraisal fees there was no evidence introduced that said sum was expended for appraisal work.

Since all three assignments of error involve the financial standing of the defendant and sufficiency of amounts allowed, we will discuss them together. In resolving a problem of this sort this Court in Tennery v. Tennery, 35 Ariz. 69, 274 P. 638, 639, stated:

'* * * Alimony allowed to a wife successful in a divorce proceeding should be reasonable. What is 'reasonable' depends upon the ability of the husband to pay as well as the wife's necessities. Its allowance and the amount thereof must be governed by the circumstances and facts of each case.

Page 185

The trial court is in a better position to determine what is right and just than we are, and, unless the allowance clearly and palpably is erroneous or excessive, we would not feel like disturbing it.'

Again this Court held in Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337, 340, that the 'husband should not be required to pay alimony to the wife unless the evidence shows that alimony is necessary for the support and maintenance of the wife.'

The plaintiff contends that the defendant received a substantial money settlement and that this together with income from a trust fund set up as a result of her receipt of proceeds from the land sale, she is amply able to take care of herself. There is some inconsistency in the evidence as to the exact amount of the trust. It is well known that this Court has consistently held that where there is any reasonable evidence to support the judgment of the trial court we will not disturb it. Covington v. Basich Bros. Const. Co., 72 Ariz. 280, 233 P.2d 837. Neither will we disturb the trial court's judgment where there is a conflict in the evidence. Paxton v. McDonald, 72 Ariz. 240, 233 P.2d 450.

[89 Ariz. 87] The trust fund at the date of the trial, according to the evidence introduced by the defendant, amounted to approximately $15,000. In addition to this defendant had about $2,125 in the bank. Prior to this time defendant purchased a home, had given same to her daughter and son-in-law but was living in the house under arrangements to live there, with her minor daughter, for the rest of her life.

Nevertheless, at the same time, the plaintiff also had assets of this approximate value from his divisional share of the community property. He is now farming land rented from his mother and can be expected to earn a reasonable profit from the yield of the land and the efforts of his toil. The evidence also indicated that the plaintiff's income tax return for 1957 showed an adjusted gross income of $19,108.07, of which sum $18,490.78 represented the net capital gain from sale of land and $617.29 represented the net income from farming. However, it is also noted that in arriving at the net income, the depreciation expense, purely a book figure, amounted to $4,024. Therefore, in 1957 the appellant earned cash income (aside from the sale of land) in the amount of $4,641.29. In addition to farm income plaintiff receives 6% interest on a $19,000 loan.

Not only must the court consider the necessities measured by ability of the wife to acquire daily work but the Court must, as was properly stated in Oliver v. Oliver, Ky.,258 S.W.2d 703, 704, 'consider * * * the wife's estate, her necessities, ...

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