HARPER v. HARPER
| Decision Date | 28 April 1950 |
| Docket Number | No. 5251,5251 |
| Citation | 54 N.M. 194,217 P.2d 857 |
| Parties | HARPER v. HARPER. |
| Court | New Mexico Supreme Court |
William T. O'Sullivan, Albuquerque, Richard C. Losh, Albuquerque, F. Craig Morton, Jr., Albuquerque, for appellant.
Iden & Johnson, Albuquerque, James T. Paulantis, Albuquerque, for appellee.
The primary question submitted for decision is whether the district court, upon decreeing an absolute divorce of the wife from her husband and ordering a dissolution of the community with a division of the community estate, may properly set over to the wife his one-half interest in a real estate purchase contract and a deed of trust, identified and adjudged to be community property, in lieu of an award of lump sum alimony.
A statement of the initial question submitted would suggest the husband, the plaintiff below, as the complaining party who presents it and seeks our answer. Strangely, such is not the case. Instead, it is the wife who does so. The parties were married in Safford, Arizona, on April 8, 1941. Prior to marriage the husband had acquired certain town lots in Las Cruces, New Mexico, which he still owned at the time of the divorce. The trial court set them over to the husband as his separate estate. Subsequent to marriage he had acquired other real estate in the city of Albuquerque consisting of town lots upon which two houses intended for residence purposes had been constructed. The trial court held these lots with the improvements thereon to be community estate. Separate sales of the two residence properties had been made by the husband prior to trial of the divorce suit. Their entire value is represented by the sum of $4,450.00 still unpaid on an escrow purchase money contract held by the husband in the one instance, and a note in the husband's favor in the sum of $4,618.76 secured by a deed of trust on the property sold in the other case.
The power in the district court to award the wife as lump sum alimony the husband's interests in the community property and to set it over to her in satisfaction thereof is challenged by counsel for the defendant (appellee) as beyond its jurisdiction. All the court can do, argue her counsel, is to make an equal division of the community property and any effort to set over to the wife a share of the husband's interest therein in lieu of alimony exceeds the trial court's jurisdiction and is void. There are two answers to this contention, either of which is sufficient unto itself. In the first place, in awarding to the wife the husband's one-half interest in the properties in question in lieu of alimony, the trial court was doing exactly what she requested it to do by her tendered conclusion of law No. 9. Counsel may not lead the trial court into error and then complain of it. Heisch v. J. L. Bell & Co., 11 N.M. 523, 70 P. 572; Gillett v. Chavez, 12 N.M. 353, 78 P. 68. The requested conclusion of law reads: 'That the defendant is entitled to alimony and the interest of the husband in the real property located in Bernalillo County, New Mexico, and the Hart Deed of Trust will be awarded to the wife in lieu of alimony; that title to said property should be vestedin the defendant; that both parties will be required to execute papers necessary to clear and transfer title to said property, and that the Court retains jurisdiction of this cause for the purpose of altering or amending the award of alimony.'
In the second place, the trial court committed no error. Our statutes relating to divorce, the award of alimony, and a division of community property incident to divorce, fully empower the court to do what it did in this respect. 1941 Comp. §§ 25-706, 25-716; Loveridge v. Loveridge, 52 N.M. 353, 198 P.2d 444. See, also annotation at 133 A.L.R. 860. It is true enough that the statute, 1941 Comp. § 25-706, L. 1901, c. 62, § 27, authorizing an award of property in lieu of alimony, mentions only 'separate' property. It is the same with 1941 Comp. § 25-716, L. 1947, c. 16, § 1. Nevertheless, this circumstance is entitled to...
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