Brown v. Brown

• Decision Date: 03 July 1931
• Docket Number: Civil 3008
• Citation: 38 Ariz. 459,300 P. 1007
• Parties: WILLIS S. BROWN, Appellant, v. KITTY BROWN, Appellee
• Court: Arizona Supreme Court

300 P. 1007

38 Ariz. 459

WILLIS S. BROWN, Appellant, v. KITTY BROWN, Appellee

Civil No. 3008

Supreme Court of Arizona

July 3, 1931

APPEAL from a judgment of the Superior Court of the County of Coconino. A. S. Gibbons, Judge. Judgment affirmed.

Mr Thorwald Larson, Mr. Joseph M. Holub and Mr. Thomas A. Flynn for Appellant.

Mr Frank Harrison and Mr. Isaac Barth, for Appellee.

OPINION

LOCKWOOD, J.

Kitty Brown, hereinafter called plaintiff, brought suit in the superior court of Coconino county against Willis S. Brown hereinafter called defendant, praying for a divorce on the ground of cruel treatment and outrage. Defendant answered denying those allegations, and cross-complained, also asking for a divorce for the misconduct of plaintiff. The court made no findings of fact, but rendered a judgment, which reads in part as follows:

"This cause having been heretofore presented to the Court, the parties hereto being present in person and being represented by their respective counsel, and each of said parties having presented to the Court testimony and other evidence in support of their respective pleadings, and the matter being submitted to the Court, and the Court being fully advised in the premises:

"It Is Hereby Ordered, Adjudged and Decreed,

"1. That the bonds of matrimony now and heretofore existing between Kitty Brown, Plaintiff in the above entitled cause, and Willis S. Brown, Defendant in the above entitled cause, be and they are hereby forever dissolved: . . ."

The balance of the judgment was devoted to an adjudication of property rights, alimony, and the custody of the children. After the usual motion for a new trial was overruled, defendant appealed from the judgment.

There are some fifteen assignments of error, which we shall consider on the legal propositions raised, and not seriatim. The first is that no valid decree of divorce was ever rendered in the case. This is based upon the theory that the judgment above set forth does not specify the grounds upon which it was rendered, or whether the decision is in favor of plaintiff or defendant. It is urged by counsel for defendant that such a judgment is void on its face.

The general rule is that a judgment which does not show for and against whom it is entered will be void for uncertainty. Shriver et al. v. Superior Court, 48 Cal.App. 576, 192 P. 124; Ferrell v. Simmons, 63 W.Va. 45, 129 Am. St. Rep. 962, 59 S.E. 752; 15 R.C.L. 592.

The reason for the rule is obvious; ordinarily a judgment cannot be enforced unless it shows in whose favor it is, and against whom it is rendered. In a divorce case, however, when both parties ask for a divorce and it is granted, the fact that the judgment does not show on whose petition it was allowed does not affect its enforceability, for such a judgment always has the same legal effect; both parties are divorced.

The judgment above set forth is definite and certain as to its effect, and we think that, since the reason for the general rule does not exist, in such cases it should not be applied thereto, and that it is unnecessary to the validity of a divorce decree under our law that the court state the reasons which impelled it to dissolve the bonds of matrimony. If our statute, like those of some other states, provided for a special penalty for the guilty party, the situation would be different, but the result is the same for both, and no uncertainty in the decree is caused by its failure to state on whose petition it was granted.

It is urged by defendant that if the court belived both parties had sustained their allegations no decree should have been granted, because of recrimination. This is undoubtedly the law, but we must presume, since the court did render a judgment of divorce, that it believed recrimination did not exist. It is doubtless true that it would have been a great satisfaction to the innocent party in this case to have it judicially declared that the other was at fault, but while this might have been advisable, a failure to do so does not affect the validity of the decree.

The next question we consider is the alleged abuse of discretion by the court in refusing to grant a continuance of the trial at the request of defendant. It is not necessary that we pass on this point, for it appears clearly in the record that while a continuance was at first requested, yet defendant and counsel employed by him during the course of the trial in effect waived this request, and agreed to proceed with the trial, without insisting upon a continuance.

The third, and (judging from the briefs and the record) the real point in controversy between the parties is as to the court's action in determining the separate and community property, and dividing it. It is the contention of defendant that practically all the property described in the decree of divorce is his separate estate, and that the court was without jurisdiction to assign any portion of such estate to plaintiff.

Section 2182, Revised Code of 1928, reads, so far as material, as follows:

"Section 2182. Disposition of property; decree may be made lien on separate property. On entering a decree of divorce the court shall order such division of the property of the parties as to the court shall seem just and right, according to the rights of each party and their children, without compelling either party to divest himself or herself of the title to separate property. The court may, however, fix a lien upon the separate property of either to secure the payment of any interest or equity that the other party may have in or to such separate property, or any equity that may arise in favor of either party out of their property during the existence of the marriage relation, or to secure the payment of an allowance for the support and maintenance of the wife or minor children of the parties. . . . "

It appears therefrom that the court is without jurisdiction to divest either spouse of his or her separate estate for the benefit of the other, though it may impose a lien on the separate estate as security for the payment of alimony, etc.

The decree provides no alimony for the wife, though it orders defendant to pay to her for the support of the minor children the sum of one hundred dollars per month. The property division, therefore, was not based on alimony. If, therefore the property found by the court to be community estate was in reality the separate property of defendant, the decree, in so far as it awarded plaintiff any interest...