Dawson v. McNaney

• Decision Date: 13 November 1950
• Docket Number: No. 5163,5163
• Citation: 223 P.2d 907,71 Ariz. 79
• Parties: DAWSON v. McNANEY.
• Court: Arizona Supreme Court

Page 907

223 P.2d 907

71 Ariz. 79

DAWSON v.McNANEY.

No. 5163.

Supreme Court of Arizona.

Nov. 13, 1950.

George M. Sterling, of Phoenix, for appellant.

Moore & Moore, of Phoenix, for appellee.

GIBBONS, Superior Judge.

This is an appeal from a judgment of the Superior Court of Maricopa County, decreeing Bertha May McNaney, formerly Bertha May Dawson, hereinafter called plaintiff, to be the owner of an undivided one-half interest in and to certain real and personal property described in the pleadings, directing the sale of said property, and the proceeds thereof equally divided between the plaintiff and Timothy T. Dawson, herein called defendant.

The undisputed facts pertinent to a determination of this case are that plaintiff and defendant were formerly husband and wife, and during coverture purchased the real property involved under contract for $2,800, with a down payment of $300, and the balance in monthly installments, from community earnings.The down payment above specified and the purchase price of the furniture was derived from an award of the Industrial Commission for permanent injuries received by defendant while employed by the City of Phoenix in 1937.On October 5, 1939, plaintiff transferred by quit-claim deed the legal title of her interest in the real property to the defendant, and simultaneously defendant executed a quit-claim deed reconveying the same property back to plaintiff.

On February 22, 1941, plaintiff filed complaint for divorce, defendant filed a waiver, and two days later a decree was entered.No reference was made to the real and personal property involved in this action, either in the complaint or the decree of divorce.

On September 16, 1947, plaintiff filed her complaint in the instant action alleging that the property involved herein was acquired during coverture, was community property at the time of the divorce, and no provision having been made in said decree for the division thereof, the plaintiff and defendant had held and now hold such property as tenants in common, each possessed of an undivided one-half interest therein.That at all times from the entering of said decree defendant, with plaintiff's consent, has been in possession thereof, and now refused to permit plaintiff entry thereon, or to make partition thereof.Defendant, by way of answer, makes no denials, but affirmatively alleges as defenses:

1.That the amended complaint fails to state a claim upon which relief can be granted;

2.That the alleged cause of action accrued more than six years before the commencement of said action, and is, therefore, barred by the provisions of Chapter 29,Arizona Code Annotated 1939, Statute of Limitations;

3.Recites the execution, delivery and recording of the quit-claim deed from plaintiff to the defendant, above referred to, and alleges the defendant is now, and at all times since October 5, 1939, has been the owner and in possession of the real estate as his sole and separate property.

Plaintiff's reply (1) admits execution of said deed, but denies she thereby transferred her interest to defendant, as they were husband and wife and living on the property at the time, and that on many occasions prior to the execution of the deeds in question defendant requested and attempted to persuade plaintiff to execute to him a quit-claim deed to said property so that he could claim full tax exemption and relieve the community from the payment of taxes thereon; (2) alleges that, in response to such repeated requests, plaintiff executed said quit-claim deed and delivered the same to defendant; (3) that plaintiff did not intend to transfer and defendant did not intend to receive the beneficial interest of plaintiff in said property; (4) that no consideration was paid by the defendant, and that both parties intended at the time of execution of said deed, and thereafter, said real property should remain the community property of the parties.

On the date of trial plaintiff's amended reply to answer was stricken from the files, having been filed too late, and defendant's motion for leave to file amended answer was denied.Other facts appearing to be material for the purposes of this opinion will be stated as particular phases are developed.

By written findings of fact the court found:

A.Plaintiff and defendant prior to February 24, 1941, were husband and wife, and acquired the property in question during their marriage, and said property was, until the decree of divorce was entered, the community property of said parties.

B.That the divorce decree made no disposition of said community property.

C.That defendant by persuasion and by the abuse of his confidential relation with the plaintiff induced the plaintiff to execute the quit-claim deed mentioned in defendant's answer, and plaintiff did not by said deed convey to the defendant her beneficial interest in the real property involved.

D.That a fair partition could not be made without depreciating the value thereof, and therefore a sale of the property is more beneficial to the parties.

E.That defendant since the divorce has been in possession of the real property, has used the same as a residence, and that the reasonable value of such use has at all times been equal to or in excess of any payments made by the defendant upon the indebtedness existing against such premises.

By merged and overlapping assignments of error and propositions of law, some of which are very indefinite and uncertain, defendant asserts error in the findings of fact, conclusions of law, and judgment which may be summarized as follows:

(a) In denying defendant's plea to the jurisdiction and plea of res judicata (defendant's theory being that the court was without jurisdiction in the premises in that the disposition of the property should have been accomplished in the original divorce action, and not having been adjudicated was res judicata in the instant suit);

(b) In failing to find plaintiff's cause of action was barred by the statute of limitations;

(c) In finding the property was community property at the time of the divorce, for the reasons: (1) the moneys that purchased said property were the sole and separate property of defendant; (2)plaintiff prior thereto had deeded said property to defendant; (3) no showing said deed was obtained by fraud;

(d)He who seeks equity must do so with clean hands and where parties are in pari delicto equity will not intervene;

(e) In denying defendant the right to file amended answer and offer proof thereunder;

(f) Judgment is contrary to law and equity, and the evidence or weight of the evidence does not support findings of fact and judgment.

The challenge to the court's jurisdiction is without merit.We hold that as no property or property rights were mentioned in the divorce proceedings and judgment, under our law and the decisions of this court, no property adjudication was had and the provisions of Sec. 27-805, A.C.A.1939, apply and the community property, if any, from the date of said decree was held by the parties as tenants in common.Rothman v. Rumbeck, 54 Ariz. 443, 96 P.2d 755;Stevens v. Stevens, 70 Ariz. 302, 219 P.2d 1045.

The second point urged is that plaintiff's cause of action is barred by limitation, to which plaintiff interposes the objection that defendant's allegations relating to this matter are too indefinite and uncertain to meet the requirements of pleading limitations as a defense.The complaint on its face does not show the claim sued upon was barred by limitations, and the particular section or sections relied upon by the defendant are not set forth.In such a case the rule heretofore announced by us applies: '* * * The law seems to be that a mere reference to the statute, as by chapter, is so indefinite and uncertain as to not properly raise the question of limitation, 17 R.C.L. 992, § 370;337 C.J. 1219, § 726; 1221, § 727; * * * .'Hyder v. Shamy, 45 Ariz. 130, 134, 40 P.2d 974, 976.

The defendant having failed to properly plead limitations, this defense, if it in fact existed, has been waived.

The real issue to be determined on this appeal is whether the property described in plaintiff's amended complaint was community property of the parties, or the separate property of the defendant at the time the divorce was granted.Defendant's claim that this is his separate property is based upon the theory that the down payment of $300 on the real estate and $400 of the purchase price of the furniture was paid from separate funds received as an award for personal injuries.

Sec. 63-302, A.C.A.1939, defines the separate property of the husband as, 'All property, both real and personal, * * * owned or claimed by him before marriage and that acquired afterward, by gift, devise or descent, * * *.'Awards for personal injuries are not expressly included therein.Such an allowance, however, is based upon compensation for loss of earning capacity, which during coverture is related to the earning power of the community.

'* * * any act by which either husband or wife is deprived of the capacity to render services diminishes the capacity to accumulate community property. * * *'Martin v. Southern Pac. Co., 130 Cal. 285, 62 P. 515.See, also, Doyle v. Doyle, 44 Cal.App. 259, 186 P. 188.

In the cases of Fox Tucson Theaters Corp. v. Lindsay, 47 Ariz. 388, 56 P.2d 183, andCity of Phoenix v. Dickson, 40 Ariz. 403, 12 P.2d 618, we held that the proceeds from actions for personal injuries sustained during coverture are community property.We hold that the moneys received by defendant from the Industrial Commission were community and not his separate funds.To like effect seeNorthwestern Redwood Co. v. Industrial Acc. Comm., 184 Cal. 484, 194 P. 31;Pickens v. Pickens, 125 Tex. 410, 83 S.W.2d 951;Doyle v. Doyle, supra; and text and cases cited in Principles of...