Hatch v. Hatch

• Decision Date: 15 April 1975
• Docket Number: CA-CIV,Nos. 1,s. 1
• Citation: 23 Ariz.App. 487,534 P.2d 295
• Parties: Shirley B. HATCH, Appellant, v. Dwight Keith HATCH, Appellee. 2024, 1 2102.
• Court: Arizona Court of Appeals

Page 295

534 P.2d 295

23 Ariz.App. 487

Shirley B. HATCH, Appellant, v. Dwight Keith HATCH, Appellee.

Nos. 1 CA-CIV 2024, 1 CA-CIV 2102.

Court of Appeals of Arizona, Division 1, Department C.

April 15, 1975.

Review Granted July 10, 1975.

Moeller, Henry & La Velle by James Moeller, Phoenix, Garbarino & Lee, Flagstaff, for appellant.

Axline, Johnson & Gardner by Raleigh Johnson, Holbrook and Porter, Stahnke & Phillips by Bernald C. Porter, Tempe, for appellee.

OPINION

WREN, Judge.

The appellant in this divorce action, Shirley Hatch, has made three claims of error committed by the trial court: (1) the nature of the division of community property; (2) the entry of a nunc pro tunc order which reduced the amount of past-due support owed to appellant; and (3) the refusal to grant appellant any attorneys' fees or costs.

Appellant and appellee, Dwight Keith Hatch, were married in 1953. In 1966, appellant filed for a divorce which was ultimately granted in 1968. The judgment awarded custody of the couple's three minor children to appellant, and reserved the remaining issues. Further proceedings in 1968 and 1969 resulted in a supplemental judgment being entered in November of 1969, which divided the community property, awarded child support, and denied appellant's request for alimony and attorneys' fees.

In March of 1970, appellant was granted a new trial, resulting in further proceedings during that year and in 1971. On February 10, 1972 a second supplemental judgment was entered, which decreed the same property distribution as the 1969 judgment and again denied a request by appellant for attorneys' fees and costs.

COMMUNITY PROPERTY

It is uncontroverted that the community property was not divided evenly, but rather was distributed so as to give appellee the greater portion. ¹ Appellant argues that the trial court erroneously ordered the unequal distribution to reward appellee and punish appellant for what the court considered to be her contribution to the deterioration of the father-daughter relationship. Appellee, on the other hand, asserts that estate, and that the division of property appellant had mismanaged the community was based upon the court's finding that appellee, as a result of successful efforts to preserve and protect the community estate, deserved the greater share.

In support of their respective positions, both parties rely on various statements made by the trial court. We find it unnecessary to set them forth here as both views are embodied in the second supplemental judgment, which states in pertinent part:

'In making the property settlement hereinabove made, the Court has taken into full consideration the relative efforts of the parties in seeking to preserve and protect the community estate and has intended to amply reward (appellee), for his successful efforts in connection therewith. The Court has also considered, to some extent, the fact that the (appellant) has willfully and deliberately destroyed any meaningful father-daughter relationship between the (appellee), and his children . . ..'

A.R.S. § 25--318(A)(1956), ² sets forth the basic premise for judicial distribution of community property:

'On entering a judgment of divorce the court shall order such division of the property of the parties as to the court seems just and right . . ..'

This provision has been construed by the courts to rest the apportionment within the sound discretion of the court. Nace v. Nace, 104 Ariz. 20, 448 P.2d 76 (1968); Wine v. Wine, 14 Ariz.App. 103, 480 P.2d 1020 (1971). The court does not have to divide the property evenly, only equitably. Kamrath v. Kamarath, 17 Ariz.App. 394, 498 P.2d 468 (1972); Gage v. Gage, 11 Ariz.App. 76, 462 P.2d 93 (1969). This discretionary power is very broad and will not be disturbed unless it clearly appears that it has been abused. Reed v. Reed, 82 Ariz. 168, 309 P.2d 790 (1957); Honig v. Honig, 77 Ariz. 247, 269 P.2d 737 (1954).

However, there are limits within which this discretion must be exercised. Apportionment of the community estate should be substantially equal in the absence of some reason requiring contrary action. Britz v. Britz, 95 Ariz. 247, 389 P.2d 123 (1964); Honig, Supra. In Britz for example, the court recognized the validity in Honig of awarding a 'lion's share' of the community property to the spouse whose labors, frugality and business sense were largely responsible for the existence of the community estate. At justified in Honig, 'one cannot expect to reap in fields he has never sown.'

The parameters of judicial discretion were further delineated in Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948), which pointed out that it must be exercised in accordance with the mandate of equitableness set forth in A.R.S. § 25--318, and not to the end that one party be rewarded or that the other party by punished. This reward-punishment prohibition has been stated in a number of cases subsequent to Porter. Britz, Supra; Reed, Supra; Honig, Supra; Witherspoon v. Witherspoon, 17 Ariz.App. 391, 498 P.2d 233 (1972); Calderon v. Calderon, 9 Ariz.App. 538, 454 P.2d 586 (1969).

Appellant asserts that the court's consideration of any misconduct on the part of appellant in alienating the affections between appellee and his daughters, was prohibited in its division of the community estate and constituted an abuse of discretion. Porter, Supra.

We cannot agree. The reward-punishment prohibition was espoused by the court in Porter in the abstract. We think the import of the rule expressed therein is both unclear and misleading. Its meaning is certainly not evident from the facts of Porter where the party at fault and against whom the divorce was granted was awarded the bulk of the community property. The court reasoned that settlement of property rights was not dependent upon the success or failure of the divorce itself.

If the import of the prohibition is that a party awarded a divorce should not be given the bulk of the property, based solely on the fact that he was successful in obtaining a divorce, then we think the rule is sound. When analyzed on their facts cases since Porter carry us no further than that simple proposition. Certainly, there are other factors to consider in determining what is 'fair and just', including custody of the children, Reed, Supra; health of the parties, Britz, Supra; and as previously stated, the contribution each party has made to the community, Britz, Supra; Honig, Supra. However, to say that moral fault or violation of marital responsibilities is an improper and prohibited consideration in dividing the property is in our opinion incorrect and inconsistent with decisions that have considered these factors. ³ See Reed, Supra; Honig, Supra; Pendleton v. Brown, 25 Ariz. 604, 221 P. 213 (1923); Spector v. Spector, 17 Ariz.App. 221, 496 P.2d 864 (1972); Finck v. Finck, 9 Ariz.App. 382, 452 P.2d 709 (1969).

Also, we are fully aware that there are many facets of an intangible nature, not reflected by a cold record, which must necessarily have been weighed by the trial court in arriving at its decision. We are cognizant of the difficulty attendant upon property distribution in divorce decrees wherein the court must often deal with an offending party and intolerable conduct. It is for these reasons that appellate courts have long enunciated the doctrine that all reasonable inferences must be taken in favor of sustaining the judgment of the trial court. Day v. Day, 20 Ariz.App. 472, 513 P.2d 1355 (1973).

In light of the foregoing principles we are constrained to hold that the court's unequal property distribution was neither unreasonable nor an abuse of discretion.

NUNC PRO TUNC ORDER

Turning next to appellant's second contention, it appears that the first support order was made on July 19, 1968, directing appellee, 'to pay support to (appellant) and the four (sic) minor children, the sum of $275.00 semi-monthly on the 8th and 23rd days of each month hereafter . . ..' This order was reaffirmed on March 6, 1969, by the following language:

'Let the record show the Court finds (appellee) has an obligation of support to three children and that the previous order of support is valid and effective until the Court makes further order in this matter . . ..'

Subsequently, the supplemental judgment of November 17, 1969, reduced the amount of child support payments by requiring appellant to pay $150.00 semi-monthly.

In May of 1970, the court amended nunc pro tunc, its order of March 6, 1969, by reducing the amount of child support from $550 per month (as provided for in the July, 1968 order), to $275 per month; the change to be effective from the entry of the court's order on March 6, 1969. The court explained that at the time of the entry of the March 6th order, it was under the impression that its previous support order of July, 1968, was for $275 Per month, and not $275 Semi-monthly; and that it intended at the time of making the March 6th order, to allow only $275 Per month.

Appellant challenges the amendment, asserting that the court lacked jurisdiction to enter the modifying order. She points to the well established law that support payments may not be retroactively decreased or increased. McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196 (1961); Johnson v. Johnson, 46 Ariz. 535, 52 P.2d 1162 (1935); Adair v. Superior Court, 44 Ariz. 139, 33 P.2d 995 (1934).

Appellee acknowledges the foregoing principle of law, but argues that since a court retains jurisdiction to direct a modification effective from the date a petition for such modification is filed, McClanahan, Supra; Crook v. Crook 80 Ariz. 275, 296 P.2d 951 (1956), and since appellee filed a petition to modify the support order in October of 1968, the amendment was properly entered.

We agree with the correctness of appellee's statement of the law, but disagree with its application here. It is readily apparent that the order entered in May of 1970 was not premised upon a petition...