Davis v. Davis
| Decision Date | 10 January 1969 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 9 Ariz.App. 49,449 P.2d 66 |
| Parties | Miriam A. DAVIS, Appellant, v. Samuel H. DAVIS, Appellee. 548. |
| Court | Arizona Court of Appeals |
Knez & Glatz, by Nick Knez, Tucson, for appellant.
Mesch, Marquez & Rothschild, by John K. Mesch, Jr., Tucson, for appellee.
Miriam A. Davis has appealed from a Brown decree of divorce contending that the decree should have been entered in her favor and that the trial court otherwise committed multiple errors. The sufficiency of the evidence supporting the judgment is challenged and error is charged (1) in the admission of evidence concerning the acquisition of property during marriage, (2) failure to award a reasonable sum of permanent alimony, (3) disposition of property, and finally, (4) failure to award appellant her costs and a larger sum for attorneys' fees.
The parties were married on the 29th of August, 1960. At that time the appellant was approximately 44 years old and the appellee, Samuel Davis, was approximately 65 years old. He had been previously married and divorced. She had been a widow for several years.
Prior to the marriage, Miriam worked as a hostess and waitress and earned approximately $75 to $90 per week. She owned the home where she lived and paid only a small tax thereon because of her widow's exemption.
After the marriage Samuel moved into her home where they lived together throughout the marriage. No children were born to them.
Samuel spent $10,000 of his separate funds enlarging portions of the house, putting in air-conditioning, installing a bathroom, and otherwise remodeling the house. He moved in some of his furniture and installed new fixtures. Miriam removed some of her furniture which she sold.
The parties continued living together in the house until sometime in 1966 when Samuel moved out because of marital difficulties.
Prior to the marriage Miriam owned, in addition to her residence and furniture, a life insurance policy with a loan value of approximately $2,500, an automobile which was traded during marriage for a 1965 Dodge, a cabin on Mount Lemmon which she sold during the marriage for approximately $4,500, a small amount of cash and her personal effects.
Samuel had retired prior to marriage and had accumulated substantial assets. He had sold a business in New York in 1957 for a price in excess of $634,000, and received annual installments from the sale in the amount of $80,000, including interest, from 1957 to 1967. As these funds were received, they were invested in real estate, stocks and bonds, bank saving deposits, and time certificates of deposit.
Neither party was gainfully employed during the marriage. Both parties maintained the bulk of their assets separately identified by keeping them in their respective separate names. Samuel did, however, make certain gifts to Miriam, and he jointly acquired certain securities with her. These were awarded to her in the judgment.
The record would indicate that both parties had ample grounds for divorce, particularly evidence that she had pointed a revolver threateningly at him and called him dirty names. She put on evidence justifying a conclusion of unfaithfulness on his part. We conclude that the court was justified in entering the Brown decree of divorce.
The appellant points out that substantial property was acquired by the appellee during their marriage and contends that, although the property was taken only in his name, such property, nevertheless, is presumed to be community property, Lincoln Fire Insurance Company of New York v. Barnes, 53 Ariz. 264, 88 P.2d 533 (1939); In re Torrey's Estate, 54 Ariz. 369, 95 P.2d 990 (1939), and that appellee did not overcome this presumption, citing Evans v. Evans, 79 Ariz. 284, 288 P.2d 775 (1955); Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459, 29 A.L.R.2d 518 (1951); Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948); Arizona Central Credit Union v. Holden, 6 Ariz.App. 310, 432 P.2d 276 (1967).
The appellant also contends that the burden of proof is upon Samuel to establish the source from whence the funds came that were used for the purchase of the property acquired during marriage, and that this must be shown by '* * * strong, satisfactory, convincing, clear and cogent or nearly conclusive evidence * * *' to establish its separate nature. Porter v. Porter, supra. We have no problem with these general propositions put forth by the appellant.
She argues, additionally, that regardless of the source of the funds used for the purchases, Samuel obviously expended labor for the purpose of acquiring the property. He left their residence every morning and did not return until dinner time every evening and she could not know what he was doing or where he was going or what labor he was expending on behalf of the property accumulated during the marriage. She points out that he did not show how this time was spent and the burden was on him to account for it.
We have carefully examined the record, considering the evidence most favorably to supporting appellee's position and find the judgment is amply supported by the evidence. Samuel retired before marriage. He had accumulated his wealth through wages and investments prior to marriage and through the sale of his business. The evidence appears uncontradicted that all of his assets were comprised of these holdings or were converted from such holdings and retained their separate nature. 1 Horton v. Horton, 35 Ariz. 378, 278 P. 370 (1929). The property retains its separate status though sold during marriage and the proceeds are used to purchase other property. See Guthrie v. Guthrie, 73 Ariz. 423, 242 P.2d 549 (1942); Porter v. Porter, supra. The profits from the sole and separate property are also sole and separate. Osborne v. Mass. Bonding & Insurance Co., 229 F.Supp. 674 (D.Ariz. 1964).
We find of no consequence the labor expended by Samuel in investing and re-investing his assets. The evidence indicated that he traded very little and that he did not engage in a great amount of stock market activity. There is no evidence of commingling of the assets in question, which were controlled exclusively by Samuel in such a manner as to clearly preserve their separate nature.
Miriam contends that she was not treated fairly in the award of alimony granted her, pointing out the standard of living the parties enjoyed during the marriage and Samuel's ability to pay more than was decreed. The question of alimony is left to the sound discretion of the trial Court DeMarce v. DeMarce, 101 Ariz. 369, 419 P.2d 726 (1966). In the exercise of that discretion, the court could properly consider the length of the marriage, the ability of Miriam to provide for herself, the benefits that she received from the marriage, and her fault in bringing about the destruction of the marital relationship.
Miriam entered the marriage with a residence, a cabin on Mount Lemmon, a 1956 Dodge automobile valued at $300, $2,845.71 in cash, and an interest in an annuity policy. She emerged from the marriage with a substantial increment in assets, including:
1. A two-carat diamond ring.
2. A three-carat wedding ring.
3. A $1,500 mink stole.
4. A sable neck piece worth $125.
5. A chinchilla stole worth $1,000.
6. A Persian neck piece of undetermined value.
7. A 1/4 interest in 100 shares of Mountain States Telephone and Telegraph (no value given).
8. A 1/2 interest in Elks Lodge Bonds, of the value of $2,100 plus interest.
9. A free and clear 1965 Dodge automobile, original cost $3,100.
10. A $10,000 addition to her real property.
11. The sum of $500 per month from February, 1967 to February, 1968.
Considering the duration of the marriage, the benefits received by Miriam, her needs and abilities, and her fault in contributing to its termination, we conclude that the trial court did not abuse its discretion in the amount of permanent alimony awarded.
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