Acheson v. Acheson

• Decision Date: 28 May 1971
• Docket Number: No. 10322,10322
• Citation: 107 Ariz. 235,485 P.2d 560
• Parties: Eddie Lou ACHESON, Appellant, v. Richard M. ACHESON, Appellee.
• Court: Arizona Supreme Court

Page 560

485 P.2d 560

107 Ariz. 235

Eddie Lou ACHESON, Appellant, v. Richard M. ACHESON, Appellee.

No. 10322.

Supreme Court of Arizona, In Division.

May 28, 1971.

Raineri, Raineri, & Raineri, by Joseph C. Raineri, Sr., Scottsdale, for appellant.

Minne & Sorenson, by Harold E. Whitney, Phoenix, for appellee.

UDALL, Justice:

Plaintiff, Eddie Lou Acheson, brought an action against her husband, Richard M. Acheson, seeking a decree of divorce on grounds of cruel and inhuman treatment. The defendant husband filed an answer and by counterclaim alleged similar grounds of misconduct on the part of the plaintiff and asked for divorce. The action was tried before the court without a jury. Judgment was entered granting the decree of divorce and ordering the defendant to pay the plaintiff's attorneys' fees in the amount of $1,312.00 and to pay the plaintiff $5,000.00 as reimbursement for debts and expenses, medical and otherwise, which she had incurred. The divorce decree made no provision for alimony. On appeal, plaintiff's only contention is that the trial court abused its discretion in not granting her an award of alimony.

The parties in the case before us first met in 1963, in a Phoenix restaurant and bar where the plaintiff was employed as a waitress. They developed a friendship which ultimately led to their marriage in October, 1965, and soon thereafter they moved to Prescott. Each of them had been married twice before. The plaintiff quit her job sometime prior to the marriage and has not worked since, apparently in part because of certain physical infirmities which required considerable medical care and some hospitalization during marriage. The defendant husband was formerly in the sign business but has been retired for some 10 years because of an arthritic condition. Prior to the marriage he inherited considerable property from his father, and this property apparently was the primary source of income for the parties during their marriage. The parties separated in June, 1968, and the plaintiff filed this action in August, 1968. Trial before the court was held on April 25, 1969, and the formal judgment granting the decree of divorce was entered on June 16, 1969. The defendant was 53 years old at the time of the divorce; the plaintiff was 41. No children were born of the marriage.

As is discussed in greater detail hereafter, an examination of the record reveals an absence of corroborating evidence of the misconduct which was alleged by the parties as grounds for the divorce. Since such corroborating evidence is required by statute, we must hold that the trial court was without jurisdiction to grant a divorce and that the judgment entered by the trial court is therefore void. The judgment of the trial court is accordingly reversed and the cause remanded for a new trial. At the new trial the court may consider anew the question of alimony.

To demonstrate our basis for the above holding, we first note that the trial court in the instant case granted a 'Brown Decree'--i.e., granted the decree of divorce without specifically granting the decree to either party. This form of divorce decree was first sanctioned by this Court in Brown v. Brown, 38 Ariz. 459, 300 P. 1007 (1931), and has been approved by this Court in a number of decisions since that time. See Hemphill v. Hemphill, 84 Ariz. 95, 324 P.2d 225 (1958); see also 133 A.L.R. 556. However, such a decree may be granted Only where both parties have established satisfactory legal grounds for divorce. Moore v. Moore, 101 Ariz. 40, 415 P.2d 568 (1966). In the Moore case the trial court made a finding that neither the plaintiff nor the defendant established by satisfactory evidence their grounds for divorce, but in spite of that finding the trial court granted a 'Brown Decree' dissolving the bonds of matrimony. As the basis for holding that the trial court was without jurisdiction under these circumstances to award a decree of divorce, we stated:

'The right to a divorce is wholly statutory and the legislature may make any grounds it sees fit a cause for divorce. Rozboril v. Rozboril, 60 Ariz. 247, 135 P.2d 221. The legislature has by A.R.S. § 25--312, provided ten grounds for divorce. It has not provided that the divorce may be granted where one of the statutory grounds has not been established or at the discretion of a superior court judge because he might think the parties would be better off as single persons. We said, in Smith v. Smith, 61 Ariz. 373, 149 P.2d 683:

"We observe that both parties ask to be given their freedom from the other. That may not be done except upon a ground provided by the statute.'

'The trial court was wholly without jurisdiction under the circumstances of this case to award a divorce and its judgment is void * * *.' 101 Ariz. 40 at 41; 415 P.2d 568 at 569.

As indicated above, A.R.S. § 25--312 provides ten grounds for divorce. The parties in the instant case relied on the second of those grounds. The statute provides as follows:

' § 25--312. Grounds.

A divorce from the bonds of matrimony may be granted:

2. When the husband or wife is guilty of excesses, cruel treatment or outrages toward the other whether by the use of personal violence or other means.'

In the instant case, both parties in their pleadings alleged grounds of cruel and inhuman treatment on the part of the other. Also, each party denied the allegation of cruel and inhuman treatment made by the other. Thereafter in a pre-trial agreement, the parties made the following stipulation:

'II. Uncontested facts:

1. That the parties married.

2. That the parties are entitled to a Brown Decree.

3. She can have her name restored.

4. No children.' (Emphasis added.)

The stipulation that the parties were 'entitled to a Brown Decree' was apparently an attempt to eliminate the need for presenting evidence as to whether grounds existed for the divorce. On this point, the wife's reply brief contains the following statement:

'If this Court will examine the transcript of the testimony of the parties before the Court, it will find that There is not one bit of evidence relating to the conduct of either of the parties, the reason being that both parties had stipulated to a Brown Decree. The purpose of the stipulation was to shorten the trial. Counsel for the wife, at least, entered into such a stipulation because he fully realized that the matter of who was at fault had no bearing on whether or not the wife was to receive alimony.

'The husband on pages 3 and 4 of his brief states that the wife intimates in her brief that she was the successful party. It is difficult to perceive what basis there would be for such a statement as there could be no successful party with no evidence having been adduced. The husband further states that the decree was a 'Brown Decree' because there was evidence before the Court that both parties contributed to the destruction of the marriage. We again reiterate that this statement is incorrect, inasmuch as there was no evidence...