Collier v. Collier, 5418

• Decision Date: 31 March 1952
• Docket Number: No. 5418,5418
• Parties: COLLIER v. COLLIER.
• Court: Arizona Supreme Court

Page 537

242 P.2d 537

73 Ariz. 405

COLLIER v. COLLIER.

No. 5418.

Supreme Court of Arizona.

March 31, 1952.

Alexander B. Baker and Harold E. Whitney, of Phoenix, for appellant.

V. L. Hash and Virginia Hash, of Phoenix, for appellee.

LA PRADE, Justice.

This appeal is from a judgment and denial of a motion to vacate and set aside judgment decreeing that plaintiff (appellee here) be granted an absolute divorce from defendant (appellant) and ordering, adjudging and decreeing that plaintiff have and recover from the defendant the sum of $9,921.16, and to secure the payment of which a lien was fixed upon the real estate held by the parties under a joint tenancy deed, and adjudging 'any other property above the property herein described and particularly disposed of by this judgment, * * * to be the community property of plaintiff and defendant.' The judgment further ordered that 'the household and kitchen furniture located on the hereinbefore described premises be awarded to plaintiff as her sole and separate property' and that 'the truck, plumbing tools and equipment be awarded to defendant as his sole and separate property.' The decree also ordered defendant to pay additional attorney fees for plaintiff in the sum of $100, and that plaintiff be restored to her maiden name of Zelpha Banta.

1. The court in its findings of fact found that the property described in the complaint was held in joint tenancy.

2. That the household and kitchen furnishings located on the property were the separate property of the plaintiff and in the decree set them over to her as and for her sole and separate property.

3. That the truck and plumbing tools and equipment referred to in the complaint were the separate property of the defendant and in the decree set them over to him as and for his sole and separate property.

4. That plaintiff advanced the sum of $9,921.16 from her separate funds for improvements upon the said real estate hereinbefore described, and that she was entitled to recover the said sum out of the joint tenancy as her sole and separate estate.

This last numbered finding of fact was repeated as a conclusion of law and there was added thereto the following words: 'and that any amount above the sum of $9921.16, which is the value of the said property, is to be the community property of plaintiff and defendant.' (Emphasis supplied.)

As an additional conclusion of law, the court found: 'That plaintiff is entitled to a lien upon the said real estate hereinbefore described and any and all interest which the defendant has in and to the said real estate by virtue of the joint tenancy therein in the amount of $9921.16, together with interest thereon at the rate of six per cent per annum from date of judgment to secure payment of the aforesaid sum, as her sole and separate estate, and that any interest which the parties might have as community property are subject to the lien in the above amount unpaid.'

In the judgment proper, the court adjudged

'That the plaintiff have and recover the sum of Nine Thousand Nine Hundred and twenty-one and 16/100 ($9,921.16) Dollars as her sole and separate estate, from the defendant.'

'That the real estate hereinbefore described be adjudged to be the property of plaintiff and defendant.'

'That to secure payment of the aforesaid sum, a lien is hereby fixed upon the real estate described herein for the payment of said sum, with interest thereon at the rate of six per cent per annum from date of judgment until paid, and that any other property above the property herein described and particularly disposed of by this judgment, be adjudged to be the community property of plaintiff and defendant.' (Emphasis suppled.)

It will be observed that in the judgment proper the court adjudged the property in question 'to be the property of plaintiff and defendant' without specifically designating in what capacity the property was owned. The co-mingled and confusing findings of fact and conclusions of law might lead one to believe that the court had found the property to be held in joint tenancy or as community property or that any value in the property in excess of $9,921.16 was community property. Counsel for defendant to no avail excepted to the findings of fact and conclusions of law and pointed out their inconsistencies. He has here appealed and as a consequence has interpreted some of the conclusions of law together with the judgment as holding that the real property is community property subject to the lien fixed by the court. Summarizing the assignments, they challenge the findings of fact and resulting judgment in these particulars:

1. The finding that the plaintiff had advanced $9,921.16 of her separate funds in the improvement of the property; and

2. The finding that the household and kitchen furnishings were the separate property of the plaintiff, both upon the ground that such findings are not substantiated by the evidence.

3. The judgment that any part of the realty is community property.

4. The rendering of a personal judgment against the defendant on account of the moneys found by the court to have been advanced by the plaintiff in the improvement of the joint tenancy property.

5. The holding to the effect that the interest of the defendant in the joint tenancy property is subject to a lien in favor of plaintiff for the amount of the personal judgment.

The plaintiff brought her action for divorce upon the ground of cruelty and her complaint alleged that the real property owned by them belonged to the community and that the household and kitchen furnishings located on part of the property (rental property) were community property and that other household furnishings consisting of beds, tables, cabinets and other items were her sole and separate property. The defendant answered denying the charge of cruelty and that the real estate belonged to the parties as community property and in this regard affirmatively alleged that the real property as described in plaintiff's complaint was held by the parties not as community property as but as joint tenants with right of survivorship and that the court in the divorce proceeding did not have jurisdiction to divide such property or otherwise act in relation thereto. The defendant also denied that the parties owned any community property.

By way of cross-complaint defendant set up facts showing that plaintiff was guilty of cruelty toward him and that the real property claimed by plaintiff belonging to the community was in fact held by the parties as joint tenants. The court granted plaintiff a divorce on her complaint and disposed of the property as above indicated. The defendant appeals from this judgment and from the 'whole thereof'.

Both parties introduced evidence in support of their respective charges of cruelty and after hearing it the court accepted that of plaintiff and granted her a decree of divorce. It would serve no useful purpose to recite the testimony and it is only necessary to say that it was sufficient to support the decree and such being the case this court cannot do otherwise than affirm the judgment dissolving the bonds of matrimony.

The evidence discloses that some of the household and kitchen furnishings belonged to the plaintiff prior to the marriage, that other furnishings were purchased subsequent to the marriage from her separate funds and a small portion of other furnishings were purchased from community funds, or in process of being purchased from community funds at the time of the decree. By the provisions of section 27-805, A.C.A. 1939, the court, upon entering a decree of divorce, shall order such division of the property of the parties as to the court shall seen just and right. A fair review of the evidence discloses that most of the household and kitchen furnishings either belonged to the plaintiff at the time of her marriage or were secured through her separate funds. In view of the code provision referred to, it appears that the court did not abuse its discretion in setting over to the plaintiff all the community household furnishings located in the two house on the premises and in setting over to defendant the truck, plumbing tools and equipment.

A review of the testimony discloses that the parties were married November 4, 1944 and separated sometime prior to the filing of the complaint for divorce on August 18, 1949. At the time of the marriage, defendant owned, as his sole and separate property, the real estate described in the complaint on which was located a one-room shack practically uninhabitable and which he had purchased in 1942 for the sum of $550. Subsequent to the marriage, the parties caused the real property to be deeded to both parties in joint tenancy by an instrument designated 'Joint Tenancy Deed' reciting that the conveyance was made to: 'C. W. Collier and Zelpha Banta Collier, his wife as joint tenants Grantees, not as tenants in common and not as a community property estate, but as joint tenants with right of survivorship'. The deed was signed by the grantor and accepted by the grantees with the following endorsement: 'The above deed is accepted and approved by the Grantees; it being their intention to acquire said premises as joint tenants with the right of survivorship, and not as community property or as tenants in common.'

The right of husband and wife to hold property as joint tenants in derogation of our community property statutes has been recognized by this court provided it clearly appears the spouses have agreed that the property should be taken in that manner. In re Baldwin's Estate, 50 Ariz. 265, 71 P.2d 791; Henderson v. Henderson, 58 Ariz. 514, 121 P.2d 437; Blackman v. Blackman, 45 Ariz. 374, 43 P.2d 1011.

In the instant case, the deed created an estate in joint tenancy and was knowingly and intentionally accepted as such by the grantees. This set of facts was conclusive upon the trial court and justified the finding that the real estate was held in...