Fitzgerald v. Fitzgerald

• Decision Date: 28 February 1962
• Docket Number: No. 6963,6963
• Citation: 70 N.M. 11,369 P.2d 398,1962 NMSC 28
• Parties: Lassella M. FITZGERALD, Plaintiff-Appellee and Cross-Appellant, v. Leslie M. FITZGERALD, Defendant-Appellant and Cross-Appellee.
• Court: New Mexico Supreme Court

Page 398

369 P.2d 398

70 N.M. 11

Lassella M. FITZGERALD, Plaintiff-Appellee and Cross-Appellant, v. Leslie M. FITZGERALD, Defendant-Appellant and Cross-Appellee.

No. 6963.

Supreme Court of New Mexico.

Feb. 28, 1962.

Edwin L. Felter, Santa Fe, for appellant

J. H. Burttram. Santa Fe, for appellee.

NOBLE, Justice.

This appeal is from the division of community property and an award of alimony to the wife in a divorce action. The wife has cross-appealed from the property division and the refusal to grant her attorney's fees.

The division of community property is challenged by appellant on the ground that item values of the community property used as a basis for the division of the property are based upon speculation and conjecture and are not supported by substantial evidence. This court has repeatedly held that findings may not rest upon mere speculation and conjecture. Petrakis v. Krasnow, 54 N.M. 39, 213 P.2d 220; Southern Union Gas Co. v. Cantrell, 56 N.M. 184, 241 P.2d 1209. Expert testimony founded upon mere surmise, guess or conjecture is not substantial to support a finding of fact. Citizens Finance Co. v. Cole, 47 N.M. 73, 134 P.2d 550; White v. Valley Land Co., 64 N.M. 9, 322 P.2d 707.

Specifically, it is contended that the trial court necessarily arrived at its item values of the community property from the testimony of R. C. Stephens. Appellant asserts that the testimony of the witness lacks substantial character to support the findings of values and is based upon mere conjecture and speculation because he had only appraised one piece of real estate in Pecos within the past year and only three or four within a three-to five-year period; that he could not recall prices for which specific real estate sales had been made in the immediate area; and, that in answer to a specific question as to whether his estimate of the values was based upon a guess, he answered: 'any appraisal is a guess.'

Under well-estabished principles, we will view the evidence in an aspect most favorable to the judgment. Southern Union Gas Co. v. Cantrell, supra; Brown v. Cobb, 53 N.M. 169, 204 P.2d 264. And, we will not disturb a finding, supported by substantial evidence, nor will we weigh conflicting evidence. Baker v. Storie, 67 N.M. 27, 350 P.2d 1039; Maryland Cas. Co. v. Jolly, 67 N.M. 101, 352 P.2d 1013; Jones v. Jones, 67 N.M. 415, 356 P.2d 231; Pentecost v. Hudson, 57 N.M. 7, 252 P.2d 511; Luna v. Flores, 64 N.M. 312, 328 P.2d 82.

We have carefully reviewed the evidence. The witness Stephens testified that he has been engaged in the real estate and insurance business in Las Vegas, New Mexico for many years, and has been an appraiser for the First Federal Savings & Loan Association of Las Vegas for six or seven years. The area of his real estate business and appraisals includes Pecos, New Mexico where the property in question is located. He testified that his opinion as to values were based upon his experience in the real estate business and as an appraiser; the appraisals he had made in the immediate area; the fact that this property is located in a recreational area; and, his knowledge of sales in adjacent areas. He personally inspected these properties and testified that the Building & Loan Association for which he appraised made loans up to 70% of his appraisals. As we view his testimony, it was not based upon mere surmise, guess, speculation or conjecture. Appellant argues that the trial court should have based its findings of values upon the testimony of a witness produced by appellant whom they say was better qualified. Appellant's contention goes rather to the weight to be given to the testimony and to the credibility of the witness and these are to be determined by the trier of the facts, not by an appellate court. Galloway v. White, 64 N.M. 470, 330 P.2d 553. We conclude that the evidence substantially supports the findings of value. Fulwiler v. Traders & General Ins. Co., 59 N.M. 366, 285 P.2d 140.

Appellant argues that a wife who voluntarily leaves a proper home is not entitled to alimony as a matter of law. The answer to that contention is supplied by Sec. 22-7-6, N.M.S.A.1953, which provides so far as material here:

'* * * the court * * * on final hearing, may allow the wife such a reasonable portion of the husband's separate property, or such a reasonable sum of money to be paid by the husband, either in a single sum, or in instalments, as alimony, as under the circumstances of the case may seem just and proper; and may modify and change any order in respect to alimony allowed the wife, whatever circumstances render such change proper; * * *'

and by our decisions in Cassan v. Cassan, 27 N.M. 256, 199 P. 1010; and Redman v. Redman, 64 N.M. 339, 328 P.2d 595 where it was held:

'* * * this section constitutes a clear and unequivocal grant of power to district courts to award the wife, in divorce actions, reasonable alimony, in installments or lump sums, independent of which spouse may have been the guilty party. The power is limited only to the grant of a reasonable sum, as that factor is limited by the facts of the particular case.'

Appellee was 59 years of age, completely lacking in training or experience for most employment, and had some physical disability in the form of mild hypertension. She had done some clerical work for a short time, and once worked as a telephone operator before her marriage in 1920. Appellant was 60 years of age, a physician with an active practice from which he has grossed $18,000 to $20,000 per year in the past. In 1959, he had a net income of $14,500. He has become 50% disabled to practice his profession but earned $5,232 during...