Blaine v. Blaine

• Decision Date: 19 June 1945
• Docket Number: Civil 4535
• Citation: 63 Ariz. 100,159 P.2d 786
• Parties: BETTY LOU BLAINE, Appellant and Cross-Appellee, v. CHARLES E. BLAINE, Appellee and Cross-Appellant
• Court: Arizona Supreme Court

159 P.2d 786

63 Ariz. 100

BETTY LOU BLAINE, Appellant and Cross-Appellee, v. CHARLES E. BLAINE, Appellee and Cross-Appellant

Civil No. 4535

Supreme Court of Arizona

June 19, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge.

Judgment modified and case remanded with directions.

Messrs Gust, Rosenfeld, Divelbess & Robinette, for Appellant.

Mr George T. Wilson, for Appellee.

Morgan J. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan, J.

Plaintiff and defendant married on June 12, 1935, and resided together as husband and wife, in Phoenix, until November 7, 1940, at which time plaintiff brought an action for divorce. Two daughters were born to the union, one aged three years and one four months at the time the action was instituted. Judgment was entered on February 13, 1942 granting plaintiff a decree of divorce, awarding her a one-half interest in the community property as described in the decree, the custody of the two children and alimony for the maintenance of herself and the children, with provision for the reduction of the amount allowed in the event she resumed work in a gainful occupation. The defendant was given the right to visit the children at reasonable times and allowed the custody of the older daughter over week ends on the last week of each month. He was also given temporary custody of this child for the first two weeks in July of each succeeding year.

The facts proved at the trial and pertinent to the issues on this appeal are, briefly, as follows: At the time of marriage defendant was the owner of a personal service business. He owned a home and some rental property in Phoenix, cash, accounts receivable, bonds, stocks, an automobile, and life insurance policies with surrender values, totaling, exclusive of real estate, $ 17,633.28. The defendant conducted his business under the name of Charles E. Blaine & Sons, and maintained a commercial account in the Valley National Bank. All income derived from the business after marriage, which is conceded to be community property, was deposited in the checking account with the Valley National Bank. All of the income from the separate estate of defendant, either from real or personal property, was also deposited in this account. At the close of 1937 the Valley National Bank balance was reduced to $ 19.08. On December 31, 1940 the balance in the account was $ 6,436.32. All monies received from community and separate sources were commingled by deposits in one account. There was no segregation. The duplicate deposit slips showed the source of the money deposited. Checks issued disclosed the purpose except that a large number of checks were drawn simply to cash. On May 14, 1936 purchase was made of property located at 1610 W. Polk Street, Phoenix, and deed taken in the names of the defendant and plaintiff. Check in payment of this property was drawn on the commercial account in the Valley National Bank in the sum of $ 2,100. On the date of marriage the defendant owned 25 shares of Valley National Bank stock. After marriage he purchased 13 shares, making a total of 38. Thereafter a stock dividend of one-half share for each outstanding share of stock was declared, a dividend of 19 shares being received. During marriage the parties filed joint federal and state income tax returns, dividing all income between them, both from community and separate property sources.

Findings were made by the trial court, and for the purpose of brevity will be summarized so far as applicable here:

Defendant deposited all income from his separate estate, as well as from community sources, in the one bank account. The accounts and records of defendant were so kept as to permit segregation of the community and separate estates of the parties, and the tracing of the revenue and funds so deposited. From this account all community expenses were paid and expenditures made for benefits to defendant's separate property, including taxes and gifts to members of defendant's family by previous marriages, in the total sum of $ 4,628.02, together with premiums on life insurance policies in the sum of $ 1,684.98.

On May 6, 1936 defendant sold bonds owned by him prior to marriage for $ 2,050, which was deposited in the commingled account on that date. Various checks were drawn and deposits made. On May 14th the Polk Street property was purchased and check for $ 2,100 to purchase the property was drawn on this account. At defendant's request the title to this property was taken in the names of both parties.

During marriage the following described property was acquired or paid for out of the commingled bank account and was held by the parties at the time of the trial: Cash $ 6,436.32; accounts receivable, less accounts payable, $ 4,056.07; Polk Street real estate $ 2,100; increase in cash value life insurance policies $ 1,110; additions to household goods, $ 1,890.18; additions to office equipment $ 404.39; 32 shares Valley National Bank stock $ 312; totaling $ 16,308.96, of which $ 786.91 of the cash was separate property of the defendant.

A portion of the item "additions to household goods" was found to belong to the plaintiff through gifts. The balance of that item appears to have been treated as the separate property of defendant.

On these findings the court concluded that the Polk Street property, increase in cash value of life insurance policies, and additions to office equipment, all of which were purchased after marriage on checks drawn on the commingled account, were the separate property of the defendant, and that the balance of the items, including 13 shares of Valley National Bank stock purchased after marriage, and a 19 shares dividend, constituted community property. The court directed plaintiff's community interest, amounting to $ 5,008.74, being one-half of the items found, to be paid to her in equal installments; the sum of $ 250 to be paid to her for attorneys' fees, and a like amount for costs. Both plaintiff and defendant appealed from the judgment, except the provisions thereof granting plaintiff a divorce.

Plaintiff claims error in the following particulars:

(1) Allowance of temporary custody of the minor daughter to defendant for the periods heretofore mentioned, on the ground that defendant is not a fit and proper person to have the custody of said child;

(2) The evidence clearly shows that the allowance of $ 125 per month for alimony and support of plaintiff and the two minor children, which is to be reduced to $ 100 per month in the event plaintiff resumes work in some gainful occupation, is wholly insufficient;

(3) The court costs and attorneys' fees allowed were, under the evidence, entirely insufficient;

(4) The Polk Street real estate, the increase in cash value of life insurance policies, and the additions to office furniture are, under the evidence and the law, community property;

(5) The Polk Street real estate, if not community property, was vested in plaintiff through gift from defendant;

(6) Credit should have been given to the community for $ 4,628.02, total amount of taxes paid on defendant's separate real estate and as gifts to members of his family by previous marriages, in that the evidence clearly disclosed that such payments were made after marriage out of the commingled bank account, and there was no evidence showing any of such payments were charged to the separate account of the defendant.

The defendant assigns error as follows:

(1) In the failure of the court to take into consideration $ 4,657.91 in accounts receivable in his business at the time of marriage;

(2) In treating the 32 shares of Valley National Bank stock as community property;

(3) In granting to plaintiff household goods and furniture as her separate property.

Questions concerning the custody of the minor children of parties in a divorce action are peculiarly for the determination of the trial court. Orders pertaining to the custody of children may be changed from time to time. The superior court has the opportunity of seeing and hearing the parties. Under the evidence in this case we cannot say that the trial court's order respecting custody was not justified. Upon the return of this case to the lower court, the plaintiff or the defendant will be at liberty to make such application as may appear proper and necessary concerning custody. We leave the matter to the discretion of the trial court.

The evidence is not clear as to the exact earning capacity of the defendant. Household and other expenses during the period the parties lived together averaged about $ 430 per month. It may be inferred that the average earnings of the defendant amounted to at least $ 450 per month. During the pendency of the suit, defendant voluntarily paid $ 150 per month, plus drug and medical bills amounting to $ 40 per month. The amount allowed by the court for maintenance of the plaintiff and the two children is inadequate. Plaintiff should be paid the sum of $ 175 per month for the maintenance of herself and children pending the further order of the court, to be reduced to $ 100 per month if the plaintiff is able to and does engage in some gainful occupation.

The evidence disclosed that plaintiff expended, in addition to ordinary court costs, the sum of $ 548.75 in payment of auditor's fees for services rendered which resulted in uncovering a considerable amount of property the court found to be community. The defendant's claim was that there was no community in excess of $ 449.62. The allowance of $ 250 for court costs and suit money is wholly insufficient. A reasonable allowance, under the circumstances, would be $ 600.

The uncontroverted evidence discloses that plaintiff's attorneys spent fifteen days in the...