Ellsworth v. Ellsworth
| Citation | 5 Ariz.App. 89,423 P.2d 364 |
| Decision Date | 03 February 1967 |
| Docket Number | No. 2,CA-CIV,2 |
| Parties | Mary Jean ELLSWORTH, a divorced woman, Appellant, v. Louis B. ELLSWORTH, a divorced man, d/b/a Ellsworth Motors, Appellee. 235. |
| Court | Court of Appeals of Arizona |
Mary Jean Ellsworth, Tempe, in pro. per.
Cavness, DeRose, Senner & Foster, by John W. Rood, Phoenix, for appellee.
This appeal arises in litigation between parties who were formerly husband and wife and as to whom a decree of divorce had been rendered on April 17, 1964. By this decree, the husband was awarded a divorce from the wife, and as his separate property, ten of the twelve items described as community property in the decree. The wife was awarded only the home of the parties and an automobile, both being subject to encumbrances. In the decree the husband was required to pay off the encumbrance on the home. In the paragraph awarding to the husband his share of the community property, the decree contains this language:
'* * * the said property being subject to all of the outstanding indebtednesses thereon, and the plaintiff (husband) is hereby ordered to hold and save the defendant harmless of and from any and all of said obligations.'
There was no mention in the decree of the general obligations of the community.
Some three months after the rendition of the divorce decree, O. S. Stapley Company, dba Arizona Hardware Company, as plaintiff, brought an action against the husband on two promissory notes and an open account. On December 9, 1964, the husband filed a third-party complaint against his former wife, alleging that the indebtednesses sued upon were community obligations and that therefore the former wife should be held liable to the extent of one half of any sums recovered by the plaintiff in the action. The former wife's answer to the third-party complaint admitted the community nature of the obligations in question but set up certain affirmative defenses.
After a motion for summary judgment filed on the third-party complaint by the former husband, the court entered a judgment on December 9, 1965, against the former wife in the sum of $4,675, said sum being one half of the amount paid by the husband in satisfaction of the claims of the O. S. Stapley Company, the judgment containing the provision that the recovery be '* * * limited to Mary Jean Ellsworth's former interest in the community property.' It is from this judgment that an appeal is taken.
In the appellant's brief filed with this court, it is stated as to the divorce decree of April, 1964, that '* * * by reason of an error, the decree was silent as to the liabilities on the two promissory notes and open account owed to Arizona Hardware (O. S. Stapley Company).' There is no elucidation in the brief as to the nature of the alleged 'error' and the matter is not mentioned again in the appellant's opening brief, the only brief filed with this court.
By the time of oral argument in this court, the appellant had discharged her counsel in this action and was representing herself. In appearing before this court, she submitted a document purporting to be a facsimile copy of the letter written to the Clerk of the Superior Court in Gila County by the Honorable Porter Murry, who presided during the divorce trial, which letter appears to direct the entry of a minute order requiring the preparation of a written judgment in the divorce action. The letter contains the following paragraph:
'The remaining property shall become the sole and separate property of the Plaintiff, subject to all outstanding indebtedness, including the balance due on the home residence.'
An examination of the record discloses that neither this letter nor the minute order that one would presume was entered in pursuance thereof was called to the attention of the trial court. Accordingly, this matter should not be grounds for reversal on appeal. Klinger v. Conelly, 2 Ariz.App. 169, 407 P.2d 108 (1965). Nor is the letter properly made a part of the record on appeal and hence should be disregarded by this court. Taylor v. American National Insurance Company, 1 Ariz.App. 574, 405 P.2d 826 (1965). Nor do we believe it would be appropriate to go this far outside of the briefs to consider whether a trial court should be reversed. American Federation of Labor v. American Sash & Door Co., 67 Ariz. 20, 189 P.2d 912, aff'd 335 U.S. 538, 69 S.Ct. 258, 260, 93 L.Ed. 222, 6 A.L.R.2d 481 (1949). For all of these reasons, we feel constrained to forego considering whether there is a patent ambiguity arising from the use of the words 'outstanding indebtednesses thereon' in the divorce decree, which might be clarified by the consideration of the letter quoted above.
The first contention made on appeal is that there was an issue of fact in the lower court precluding summary judgment under the doctrine that a summary judgment should not be granted when there is the '* * * slightest doubt as to the facts.' Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 362, 368 P.2d 317, 318 (1962). The only facts called to this court's attention at this point, as precluding summary judgment, are those contained in an affidavit filed by the appellant in the lower court in which she stated that she had refused to sign the promissory notes upon which the husband was sued, and that she did not acquiesce in these obligations.
We hold that such assertions are not sufficient to defeat the community nature of these obligations. It is not necessary that the wife sign a note in order for the same to be a community obligation. Donato v. Fishburn, 90 Ariz. 210, 367 P.2d 245 (1961). Nor, is it material that the wife did not 'acquiesce' in the incurring of the obligations. By statute, the husband is made the manager of the community. A.R.S. § 25--211, and see Spector v. Spector, 94 Ariz. 175, 382 P.2d 659 (1963). If the husband acts with the object of benefiting the community, a fact not questioned here, the obligations so incurred by him are community in nature, whether or not the wife approved thereof. Donato v. Fishburn, supra.
The second contention raised on appeal is that there were 'equitable' defenses raised by the wife which would affect the measure of contribution to which the husband was entitled. Portions of the appellant's affidavit filed in the lower court are relied upon in this area of the appellant's brief, which portions are to the effect that the husband received more community property than the wife out of the divorce decree, and that it would be a 'hardship and inequality' if the wife's share of the community property were forced to contribute one half of the amounts paid to satisfy the subject obligations.
The question of the equitable...
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