Le Baron v. Le Baron

• Decision Date: 12 April 1922
• Docket Number: Civil 1900
• Citation: 23 Ariz. 560,205 P. 910
• Parties: EDWIN M. LE BARON, Appellant, v. EDITH V. LE BARON, Appellee
• Court: Arizona Supreme Court

205 P. 910

23 Ariz. 560

EDWIN M. LE BARON, Appellant, v. EDITH V. LE BARON, Appellee

Civil No. 1900

Supreme Court of Arizona

April 12, 1922

APPEAL from a judgment of the Superior Court of the county of Maricopa. Fred L. Ingraham, Judge. Judgment reversed.

STATEMENT OF FACTS.

The appellant, Edwin M. Le Baron, on July 24, 1918, brought suit for divorce in the superior court of Maricopa county Arizona, against the appellee, Edith V. Le Baron, alleging as cause therefor:

"That in the year 1918 defendant has at various and sundry times been guilty of outrages towards this plaintiff and willfully treated plaintiff cruelly."

The appellee appeared and answered the complaint and denied the allegations thereof. Thereafter, and on August 10, 1918, a divorce was granted to the appellant herein, without opposition, and he was awarded by the decree the custody of the three minor children of the union; visitorial rights being accorded to the wife. On August 27, 1918, this decree was modified by the consent of the parties to the extent of permitting the children to be removed from the state of Arizona by their custodian, the father; he being required thereby to pay the sum of $25 per month to the mother in order that she might have the necessary means to pay her way to said children for visitorial purposes.

The present action was brought on January 15, 1920, by the appellee against the appellant, praying, with other relief for a decree vacating and setting aside the decree of divorce granted the appellant so far only as such decree affected the property rights of the parties and awarded the custody of the children to him. (For purposes of convenience, we shall hereafter refer to the parties as they were designated in the court below in this action, i.e., the appellee, Edith v. Le Baron, as plaintiff, and the appellant, Edwin M. Le Baron, as defendant.) the complaint alleges:

"That by reason of the fraud, deception, coercion and intimidation practiced upon and perpetrated against the plaintiff herein by the defendant, his attorneys and agents, as hereinafter complained of, and for no other reason, this plaintiff refrained from defending in said cause No. 10,956 (the divorce action) or introducing any evidence in her behalf therein."

And at considerable length it alleges the facts of defendant's conduct by means of which she was prevented from defending in the former action. The community property is described as consisting of an equity in certain lands of the value of $8,000 and of personal property in the form of promissory notes and accounts receivable in the sum of $4,350. Plaintiff first discovered the complicity of the defendant in the fraud by which she was induced to permit the divorce case to go without defense on November 13, 1919. It is further alleged that defendant is an unfit and improper person to have the care and custody of the children of the parties, and that the plaintiff is in all respects a fit and proper person to have such care and custody. The prayer of such complaint is in the following language:

"(1) That the decree and order made and entered in said cause numbered 10,956, in so far as it affects the property rights of plaintiff herein, her right to the care and custody of her said children, and her right to alimony and support money for herself and her said children, be annulled, vacated and set aside.

"(2) That the defendant be required to account to the plaintiff for all property of the plaintiff and defendant as the said property existed on the first day of January, 1918, and that the plaintiff have judgment for such portion thereof or such sum in lieu thereof as to the court may seem meet and equitable.

"(3) That the plaintiff be awarded the absolute custody of her children, Ellen Le Baron, William Le Baron, and Mary Le Baron, and that the defendant be required to pay to the plaintiff monthly such sum as to the court may seem meet and proper for the care and support of said children.

"(4) That the defendant be required to pay to the clerk of the court for the plaintiff such sum as to the court may seem reasonable and proper as an attorney fee for plaintiff's attorneys.

"(5) That the court make such other and further orders herein as to it may seem meet and equitable.

"(6) That plaintiff recover her costs herein incurred."

The answer of the defendant to this complaint, by various general and special pleas, challenged its sufficiency in law and denied its truth in fact. The court below upheld the sufficiency of the complaint as against the objections made and the cause was tried to a jury, to which were submitted certain of the controverted issues by interrogatories, 57 in number, the answers to which, with few exceptions, were favorable to plaintiff. Thereafter the court adopted the said interrogatories, with the answers thereto, as its findings of facts upon the controverted questions submitted to the jury for determination, and, upon these findings and the admissions made by the pleadings, adjudged that plaintiff was entitled to the relief prayed for in her complaint, vacated and set aside the former decree and the order modifying the same, in so far as such decree and order applied to the community property of the parties, or the custody of the children and their support and maintenance, and specifically awarded the plaintiff the sole custody of the children with visitorial rights only to the defendant, gave judgment against defendant for the sum of $5,000, and required the defendant to pay $100 per month to the plaintiff for the support and maintenance of the children. From this judgment and the order of the court denying the defendant a new trial the defendant has appealed. The cause is before us in a voluminous abstract comprising over 1,300 pages, or nearly 4,000 folios of printed matter, being a record of proceedings which occupied some three weeks' actual time in the trial to a jury in the court below. Further facts will be stated in the opinion.

Messrs. Dougherty & Dougherty, Mr. M. J. Dougherty, Mr. W. L. Barnum, Mr. Peyton H. Smith, and Mr. G. A. Rodgers, for Appellant.

Messrs. Hayes, Laney & Allee, for Appellee.

OPINION

FLANIGAN, J.

(After Stating the Facts as Above.) The complaint and decree in the divorce action were silent concerning the community property, or its disposition. In a suit for divorce "when there is no allegation as to the community property and no decree or judgment on the point, the decided weight of authority is that the former spouses hold the property as tenants in common, subject of course to the payment of the debts of the marital partnership." Mckay on Community Property, § 413, and cases cited; Ambrose v. Moore, 46 Wash. 463, 11 L.R.A. (N.S.) 103, and annotations, 90 P. 588. Following the authorities cited, we hold that the decree of divorce changed the tenancy of the parties from that of equal owners of the community estate (La Tourette v. La Tourette, 15 Ariz. 200, Ann. Cas. 1915B, 70, 137 P. 426) to that of equal owners as tenants in common in the property.

The effect of the former decree, viewed as an entirety, was therefore to dissolve the marriage bonds, award the custody of the children to defendant, with visitorial rights to plaintiff, and to invest the parties with the title to the former community property as tenants in common thereof. The decree in the present action does not affect the divorce decree in so far as a dissolution of the marital relation is concerned, but modifies it by awarding plaintiff a judgment against defendant in the sum of $5,000, in lieu of her interest as a tenant in common in the former community property, divests the defendant of the right granted him by such former decree to the custody of the children, and awards their custody to the plaintiff, and requires the defendant to pay plaintiff $100 per month for their support and maintenance. This judgment for the sum of $5,000 was based upon the answer of the jury to interrogatories requiring them to ascertain what sum of money, if any, the plaintiff was entitled to recover from defendant as and for plaintiff's interest in the former community property, to which they answered that "she is entitled to recover $5,000."

The defendant's testimony, which can hardly be said to have been contradicted at all, tended to prove that the community estate was probably indebted for community debts beyond its ability to pay. Furthermore, the jury were not instructed that they were to make a division of the property as it existed at any time in kind. In fact, no rule whatever was announced for thier guidance in arriving at the determination made. Nor is it pretended that the verdict and judgment are based upon an accounting. Under the evidence, the form of the interrogatories, and the entire failure to instruct the jury as to any rule for division of the property, it is very plain that in answering these interrogatories the jury did precisely what they were justified in assuming it was their duty to do, i. e., fixed a sum based exclusively upon their own conception of what it was fair and equitable the defendant should pay to plaintiff, without reference to a division or valuation of the property, or any rule by which they should make the division. The judgment, based upon the sum so fixed, must be regarded as a purely arbitrary determination which cannot be upheld.

While this error is outstanding, it is not the only instance in the voluminous record before us of error, to the prejudice of the defendant here, on the trial. These we shall not pause to further consider because of our disposition of the case on the objections made in limine of the proceedings.

It is not contended by the defendant that the complaint does not set forth facts sufficient upon which...