Zelda E. MATLOW, Appellant,
Gerald L. MATLOW, Appellee.
[89 Ariz. 295] Finn, Gorey & Ely, Phoenix, for appellant.
Lewis, Roca, Scoville & Beauchamp, by Charles A. Stanecker, Phoenix, for appellee.
BERNSTEIN, Vice Chief Justice.
Gerald L. Matlow, hereinafter called 'plaintiff', brought suit in the superior court of Maricopa County against Zelda E. Matlow, hereinafter called 'defendant', praying for a divorce on the grounds of excesses, cruel treatment and outrages toward the plaintiff. The defendant answered denying those allegations and cross-complained asking for a divorce on the same grounds alleged in plaintiff's complaint. At the time of the trial of this action, the trial court granted defendant's motion to dismiss the cross-complaint and to amend her answer by setting up the defenses of condonation and recrimination. The record reveals that no evidence was presented on the defense of condonation. The issue was tried to the court sitting without a jury resulting in a judgment dissolving the marriage and a division of the property. The defendant's motion for a new trial was denied. This appeal followed.
The parties have treated the judgment dissolving the marriage as if the court awarded the decree of divorce to the plaintiff. Apparently this was done under the theory that it amounted more to irregularity than to error as set forth in Macfadden v. Macfadden, 157 Fla. 477, 26 So.2d 502. We will therefore treat the decree, for the purpose of this appeal, in the same manner.
The defendant has raised the following three assignments of error:
'The Court erred in awarding a decree of divorce to the plaintiff-appellee in the face of uncontradicted evidence of recrimination.'
'The trial court erred in sustaining the objection to evidence on recrimination after allowing the filing of an amended answer setting forth said defense.'
'The trial court erred in granting the following portion of the judgment:
'It Is Further Ordered that the plaintiff, Gerald L. Matlow, be and he is [89 Ariz. 296] hereby awarded as his sole and separate property that certain real estate consisting of a house and lot and known as Lot 61, Tonka Visa, Unit 2, according to the plat of record in the office of the County Recorder, Maricopa County, Arizona.
'It Is Further Ordered that a lien upon said real property herein set apart to plaintiff be impressed on said real property in favor of the defendant, Zelda E. Matlow, in the event said property shall be sold by the plaintiff, in an amount equal to one-third of the sales price received by plaintiff in excess of the sum Eleven Thousand ($11,000.00) Dollars."
Assignment of Error I
It is contended that recrimination was shown by the defendant's testimony to the effect that: 'Whenever people came into the house, he would go off in the den and sit by himself,' 'Well, my husband didn't want any children.' The defendant also complained that ...