O'Connor v. O'Connor, 1
| Decision Date | 22 March 1972 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 16 Ariz.App. 599,494 P.2d 1344 |
| Parties | Helen M. O'CONNOR, Appellant, v. Robert J. O'CONNOR, Appellee. 1573. |
| Court | Arizona Court of Appeals |
Maxwell, Johnson & Smith by Donald Maxwell, Scottsdale, for appellant.
Matz & Jurkowitz by J. Wayne Jurkowitz, Phoenix, for appellee.
Appellant-plaintiff, Mrs. O'Connor, has appealed from that portion of the trial court's decree of divorce which reads as follows:
'IT IS FURTHER ORDERED that the parties and each of them are forever barred from receiving alimony one from the other.'
Mrs. O'Connor requests that the above-quoted portion of the judgment be reversed and that a new trial be had for the purpose of awarding alimony to her.
The meager record developed in the trial court shows that at the time of the divorce the O'Connors had been married for 35 years, and that Mrs. O'Connor was 53 years old. Some 4 years previously, Mrs. O'Connor had undergone cancer surgery which resulted in the removal of her breasts. At the time of the trial there had been no indication of recurrence of the cancer, but Mrs. O'Connor did testify that as a result of the surgery, she had poor circulation in her left arm and that it went to sleep all the time. She stated that during the early part of her marriage she had worked for about a year as a waitress, but that because of her health she now was unable to work or to get employment. She also testified that she had never learned to drive and was unable to drive. On cross-examination she stated that she had not attempted to find employment, and that she had done some painting around the house and some yardwork because her husband refused to do it. However, no evidence was introduced to show that she was physically able to undertake steady or part-time employment or that suitable employment would be available to her.
The following listed assets were owned by the parties as community property:
1. The family residence. Mrs. O'Connor testified that the residence was worth approximately $12,000 subject to an encumbrance of $329. Mr. O'Connor estimated its value at.$19,000. The original purchase price was $8,650.
2. Greyhound Employees' Credit Union investment. This was valued at $13,165.06.
3. 1967 Ford Pick-up. Mr. O'Connor estimated its value at $1500.
4. Gun collection. There was no testimony as to the value of the gun collection.
5. Boat and motor. There was no testimony as to the value of the boat and motor.
Mrs. O'Connor had no source of income other than her husband's earnings and owned no separate property whatsoever. Mr. O'Connor worked as a bus driver and made approximately $13,300 per year. Pending the litigation the trial court awarded Mrs. O'Connor temporary alimony in the sum of $400 per month.
In the final decree the trial court awarded the home to Mrs. O'Connor; divided the credit union investment equally between the parties; and awarded the gun collection, the truck and the boat and motor to Mr. O'Connor.
The initial contention urged by Mr. O'Connor in support of the trial court's refusal to award permanent alimony to Mrs. O'Connor, is that Mrs. O'Connor failed to pray for permanent alimony in her complaint, and that this failure bars her from now complaining that the trial court erred in refusing to award her alimony. We find no evidence that any such contention was urged in the trial court in opposition to plaintiff's quest for a permanent alimony award.
At the trial evidence relating to Mrs. O'Connor's support needs was admitted without any objection. Also, in reviewing the complaint we note that paragraph VI thereof reads as follows:
'That the Plaintiff is without sufficient funds to maintain this action; that the Defendant is an able-bodied man, capable of earning the sum of $1300.00 per month, And is capable of paying Plaintiff's attorney fees and court costs herein incurred in the sum of $500.00, and Capable of paying Plaintiff the sum of $550.00 per month as alimony.' (Emphasis added).
The prayer to the complaint relating...
To continue reading
Request your trial
-
Lindsay v. Lindsay
...cannot be exercised arbitrarily. Rather, there must be support in the record for the trial judge's determination. O'Connor v. O'Connor, 16 Ariz.App. 599, 494 P.2d 1344 (1972). Porreca v. Porreca, 8 Ariz.App. 394, 446 P.2d 500 (1968), relied on by the court in O'Connor, supra, presented a si......
-
Marriage of Foster, In re, 1
...The judgment of the trial court will not be reversed except where there has been a clear abuse of this discretion. O'Connor v. O'Connor, 16 Ariz.App. 599, 494 P.2d 1344 (1972). We start with the assumption that the trial court did not abuse its discretion in concluding appellee was entitled......
-
Anonymous, In re
...494 P.2d 1342 ... 16 Ariz.App. 597 ... In the Matter of ANONYMOUS, Juvenile No. 22150--1, a person under the age of eighteen years, Appellant ... No. 2 CA-CIV 1107 ... Court of Appeals ... ...
-
Oppenheimer v. Oppenheimer
...Ernest either are not controlling or have been cited for a proposition completely opposite to the actual holding. O'Connor v. O'Connor, 16 Ariz.App. 599, 494 P.2d 1344 (1972) has been cited to us as proof that the award in this case was clearly excessive. Yet in that case, in addition to th......