Armer v. Armer

• Decision Date: 15 January 1970
• Docket Number: No. 9675,9675
• Citation: 463 P.2d 818,105 Ariz. 284
• Parties: Charles C. ARMER and Gertrude Hill, Appellants, v. Lillian ARMER, Appellee.
• Court: Arizona Supreme Court

Page 818

463 P.2d 818

105 Ariz. 284

Charles C. ARMER and Gertrude Hill, Appellants, v. Lillian ARMER, Appellee.

No. 9675.

Supreme Court of Arizona, In Banc.

Jan. 15, 1970.

Rehearing Denied Feb. 17, 1970.

Otto Linsenmeyer and Frank E. Dickey, Jr., Phoenix, for appellants.

R. Kelly Hocker, Tempe, for appellee.

HAYS, Justice.

Charles Armer, defendant below, appeals from a trial court divorce decree which awarded to Lillian Armer, his wife and plaintiff, an absolute divorce and divided the community assets of the two parties. Mrs. Gertrude Hill, Charles' mother and a co-defendant in the action below, appeals from that part of the trial court's judgment which was adverse to her own property claim. We affirm in part and reverse in part the judgment below, and remand the case to the trial court for further proceedings not inconsistent with this opinion.

The action was tried without a jury, and in accordance with Ariz.Rules Civ.Proc. 52(a), 16 A.R.S. the parties requested the trial court to make written findings of fact and conclusions of law prior to the entry of judgment. Defendants challenge the factual findings, legal conclusions and judgment of the court as erroneous and incomplete.

The trial court found, and the evidence substantiates, that Charles and Lillian were married on March 27, 1947, and that four children were subsequently born as the issue of their marriage. During their eighteen or so years of marriage, Charles was sporadically employed, and although he possessed a bachelor's degree from the University of California, he seldom held his employment positions for more than a couple of years. At various times during their married life, Charles worked as an insurance agent, a salesman, and a state real estate appraiser. During much of their marital relationship, Charles spent extended periods of time away from his wife and children.

In 1961, Charles and Lillian became interested in a piece of ranch property known as Coon Creek, situated in Gila County, Arizona. The then owner of the property had experienced financial difficulties, and in October of 1961 Charles and Lillian decided to purchase the property. Upon tender of a down payment, title to the property was taken in the names of Lillian and Charles Armer, as husband and wife. At the time, Charles was about half way through a 2 1/2 year period of extended unemployment, and the Armer family was being substantially supported by periodic payments from Charles' mother, the defendant Mrs. Hill. Knowing that the title to Coon Creek was in the name of Charles and Lillian, Mrs. Hill paid the balance due, some $20,000 on the ranch. Lillian was unaware of Mrs. Hill's financial contribution to the purchase price, and had previously asked Charles not to borrow money from his mother to pay for the property.

Although the Armers originally intended to move their family to the ranch, this was never done. The children were in school in Tempe at the time of the purchase, and since Coon Creek did not have a public school the Armers remained in Tempe. Lillian hoped that with the addition of her four children in the Coon Creek area, a public school would be established there the following year (1962--63).

In the spring of 1962, Charles approached Lillian and requested that his mother, who was approximately 75 years of age at the time, be permitted to move permanently onto the Coon Creek property. Lillian had no objection, particularly since the Armer family was still living in Tempe. Later that year, Charles asked Lillian to sign a quit claim deed transferring their interest in Coon Creek to Mrs. Hill. Charles told Lillian that the express purpose of such a deed was to allow Mrs. Hill to have a place to live should both Charles and Lillian be killed in a common accident, and he further explained that the deed would not be notarized, would be placed in the armer's safe-deposit box, and would not be delivered to Mrs. Hill except in the event that both he and Lillian were killed. Relying on these representations, Lillian signed the quit claim deed.

Subsequently, Charles signed the deed and had it notarized, turned it over to his mother, and on December 16, 1964, the deed was recorded in Gila County. Lillian was unaware of any of these events, and at all times believed the property to be the community property of herself and her husband.

The trial court's findings of fact included: 'That at no time prior to the payment of the balance due (on the ranch property) did the defendant Gertrude Hill place any restriction, oral or written, on the payment or have any understanding that it was a loan or that there should be repayment, but rather it was her intention to make a gift of the money to her son Charles and daughter-in-law Lillian Armer.' In its conclusions of law, the court enumerated:

'1. That the Coon Creek property was acquired by CHARLES and LILLIAN ARMER by reason of a valid and completed gift from Mrs. HILL to them.

2. That the parties CHARLES and LILLIAN ARMER held this property as tenants in common, and not being community property, it is separate property and either party could convey his or her interest to a third party.

3. That the actions of the defendant CHARLES ARMER and the subsequent actions of the defendant CHARLES ARMER, confirmed his intentions to convey his ownership interest in the Coon Creek property to the defendant GERTRUDE HILL.

4. That the defendant GERTRUDE HILL obtained the interest of LILLIAN ARMER through the fraudulent actions of herself and her agent, CHARLES ARMER.

5. That the defendant HILL holds an undivided one-half (1/2) interest in the Coon Creek property as her sole and separate property, and the defendant HILL holds the remaining one-half (1/2) interest in the said property in trust for the plaintiff, Lilliam Armer and that she should be required to reconvey the same to plaintiff.'

In its judgment, the trial court ordered that the portion of the quit claim deed conveying Lillian's 1/2 interest in Coon Creek was null and void, and that Mrs. Hill held Lillian's interest in the property in trust for Lillian.

Defendant, Charles Armer, challenges the trial court's findings, conclusions and judgment as follows: (1) That the court improperly awarded certain separate property of Charles to Lillian; (2) that Lillian was not entitled to an award of her reasonable attorney's fees; (3) that the court erroneously failed to specify Charles' visitation rights with respect to his children; (4) that Lillian failed to properly plead and prove actionable fraud against Charles as to the Coon Creek quit claim deed; (5) that the trial court's finding that Mrs. Hill gave Charles and Lillian a gift of money was not supported by law of fact. Defendant Mrs. Hill joins Charles in asserting contentions #4 and #5.

I. THE COURT'S DISPOSITION OF THE PARTIES' COMMUNITY PROPERTY.

In its judgment, the trial court declared certain property to be part of the community estate of Charles and Lillian and divided that property between the two parties. Included in Lillian's share of the community property was five acres of unimproved property near the Black Canyon Highway in Maricopa County, and 'all of the clothing, jewelry, furniture, appliances, dishes, utensils, fixtures, linens, bedding, equipment and houshold effects' then in Lillian's possession at the family home in Tempe. Charles contends that the Black Canyon property, as well as some of the household effects, were his separate property and not part of the community estate.

It has long been the law in Arizona that property acquired by either spouse during coverture, whether taken in the name of husband or wife, is prima facie community property. In re Torrey's Estate, 54 Ariz. 369, 95 P.2d 990 (1939). Such a presumption is rebuttable, but only by clear and convincing evidence. Smith v. Smith, 71 Ariz. 315, 227 P.2d 214 (1951). When the character of property as separate or community is once fixed, the property retains such character until changed by agreement of the parties or by operation of law. Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948). The Black Canyon property was acquired during the 1950's. Originally it was acquired in the names of both Charles and Lillian, but in order to take advantage of Charles' Veterans' Exemption from property taxation, Ariz.Const. Art. 9, § 2, A.R.S., Lillian executed a quit claim deed of the property to Charles. However, nowhere in his responsive pleadings did Charles ever object to Lillian's claim that the Black Canyon property was community. Rather, in his answer to Lillian's complaint, Charles admitted that the Black Canyon parcel was community property. By the pleadings alone, defendant Charles Armer precluded himself from any subsequent objection to the characterization of the property as community.

Even if Charles' objection had been timely, however, the Black Canyon parcel would still be properly designated as community. Lillian's quit claim deed of the parcel cannot be reasonably considered a gift of her interest, but was merely undertaken for tax purposes. Without a clear intention on the part of Lillian to alienate her interest, the original character of the property, presumed to be community, would remain unchanged.

As to the household effects which were a part of the Tempe home, Charles did not designate to the trial court any specific items contained therein which were his separate property. The trial judge validly presumed that all of the property contained in the house was community, and we cannot say that such a finding was clearly erroneous. Parties are bound by their pleadings and evidence may not be introduced to contradict or disprove what has been admitted or asserted as fact in their pleadings, and a party may not introduce evidence in contradiction of express allegations of his complaint. Adams v. Bear, 87 Ariz. 288, 350 P.2d 751 (1960).

Charles' final contention as to the trial court's community property disposition is that...