Hatch v. Hatch

• Decision Date: 19 March 1976
• Docket Number: No. 12175--PR,12175--PR
• Citation: 113 Ariz. 130,547 P.2d 1044
• Parties: Shirley B. HATCH, Appellant, v. Dwight Keith HATCH, Appellee.
• Court: Arizona Supreme Court

Page 1044

547 P.2d 1044

113 Ariz. 130

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

No. 12175--PR.

Supreme Court of Arizona, In Banc.

March 19, 1976.

Rehearing Denied April 20, 1976.

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

Axline, Johnson & Gardner, by Raleigh Johnson, Holbrook, Porter, Stahnke & Phillips, by Bernald C. Porter, Tempe, for appellee. STRUCKMEYER, Vice Chief Justice.

In this suit for divorce brought by Shirley B. Hatch against Dwight Keith Hatch, the Superior Court granted Shirley B. Hatch a judgment of divorce, awarded her the custody of the three minor children of the parties, awarded child support, divided the community property, but denied her alimony, costs of suit, attorney's fees and a judgment for $3,875 for arrearages on past due child support payments. This appeal questions the division of the community property, the denial of attorney's fees, costs, and the failure of the court below to enter judgment for $3,875, the amount of past due arrearages. The Court of Appeals affirmed in part and reversed in part. We accepted review. Opinion of the Court of Appeals, 23 Ariz.App. 487, 534 P.2d 295 (1975), vacated. Judgment of the Superior Court reversed.

In the light of the expanded concept of the equal rights of women as it exists today and before considering the claims of the parties, certain aspects of the community property law as it has developed in Arizona should be examined.

As a part of the New Mexico Territory, Arizona inherited the community property system which existed in Spain and Mexico. In 1863, Arizona become a separate territory and in 1865 the Territorial Legislature confirmed by law that the community system prevailed in Arizona. Laws of 1865, Ch. XXXI at 60. The community property laws were codified in 1901. See Rights of Married Persons, §§ 3102--3111, R.S. 1901. In 1910, by Article 22, § 2 of the Arizona Constitution, all the laws of the Territory of Arizona then in force were adopted as the laws of the State of Arizona until altered or repealed by the Legislature.

William deFuniak, in his Principles of Community Property, states:

'The Spanish law of community very plainly provided that 'Everything the husband or wife may earn during union, let them both have it by halves. " Vol. I, pp. 261--262.

It has been the rule in community property states that during coverture the respective interests of the husband and wife in community assets are equal. This is true in Arizona.

'Under the community law of this state the spouses own their common property and the wife's interest is equal to that of the husband's.' Coe v. Winchester, 43 Ariz. 500, 503, 33 P.2d 286, 287 (1934).

The only real argument in community property states has been not whether the wife's interest is equal to that of her husband's but whether the wife's one-half interest in the community is an immediate, present ownership of half of the community property or whether she had merely an inchoate interest in half during the marriage which vested in her fully upon the dissolution of the marriage. This was settled in favor of immediate, present ownership by the United States Supreme Court in holding that, consistent with the Constitution of the United States, the legislature of New Mexico could not pass a law putting an end to the wife's interest in the community without just compensation. Arnett v. Reade, 220 U.S. 311, 31 S.Ct. 425, 55 L.Ed. 477 (1911).

In examining the status of the wife's interest in community property, it was long ago held that her interest was vested during coverture.

'The Supreme Court of the United States, in cases arising from some of the other states having laws establishing matrimonial communities similar to those of Louisiana, has had occasion to consider the nature of the interest of the wife therein, and, while the question here raised was not involved, i.e., the ownership of one-half of the community income, nevertheless it has uniformly held (except as to the state of California where the statutory provisions are materially different) that the interest of the wife is a vested one and not a mere expectancy. * * * The interest is of such a nature that, if it were sought to be divested by a statute seeking to abolish the community, the same would probably be unconstitutional as destroying a vested right. Dixon v. Dixon's Executors, 4 La. 188, 23 Am.Dec. 478; Arnett v. Reade, supra.' Pfaff v. Bender, 38 F.2d 642, at 645 (E.D.La.1929).

This Court has held:

'The wife is no longer a chattel in the United States and especially is this true in Arizona where she has a vested right in the community property * * *.' Grimditch v. Grimditch, 71 Ariz. 198, 203--204, 225 P.2d 489, 492 (1950), modified on other grounds, 71 Ariz. 237, 226 P.2d 142 (1951).

And in Schwartz v. Schwartz, we said:

'There can be no question but that the husband and wife as long as they are such are equal owners of the property acquired by their joint efforts during coverture. La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426, Ann.Cas. 1915B, 70; Molina v. Ramirez, 15 Ariz. 249, 138 P. 17.' 52 Ariz. 105 at 109, 79 P.2d 501, at 502, 116 A.L.R. 633 (1938).

The vested nature of the wife's interest is so taken for granted that if community property is not distributed in a divorce decree, it is accepted without argument that the husband and wife each own an undivided one-half interest in the former community assets as tenants in common. Dempsey v. Oliver, 93 Ariz. 238, 379 P.2d 908 (1963); Hatch v. Jones, 81 Ariz. 5, 299 P.2d 181 (1956).

This divorce action was commenced on October 4, 1966. Shirley Hatch was awarded a divorce about a year and five months later on February 23, 1968. The record amply demonstrates that her husband was guilty of extreme cruelty in the use of physical violence upon her.

At the time that Shirley Hatch was awarded a divorce, on February 23, 1968, the court reserved its ruling as to the division of the community property, child support for their three minor daughters, alimony and attorney's fees. This was contrary to the express provisions of the statute, A.R.S. § 25--318A, See Laws 1962, Ch. 45, § 1, Infra, which explicitly provided that upon entering a judgment of divorce a division of the property of the parties shall be ordered by the court. The final order of the court dividing the property from which this appeal was taken did not occur until February 10, 1972. In the intervening four years, many things occurred which the trial court should have anticipated in the light of failure to resolve the other issues attendant on the dissolution of the marriage.

In the final distribution of the community, Mrs. Hatch was awarded a tract of land which some of the evidence established as having a value of $27,400, and her former husband was awarded a tract of land with an estimated value as high as $170,000. Nor was Mrs. Hatch awarded any other property of substantial value which might have equalized the division.

Appellee argues that 'the trial court is not required to divide the property evenly, only equitably.' However, even the word 'equitable' is defined by Webster as 'characterized by evenness.' Webster's Third New International Dictionary (1965). It is apparent that such a gross disparity, uneven and inequitable distribution of the community assets, could not have been other than whimsical and arbitrary.

The record affirmatively establishes that the trial court's distribution was whimsical and arbitrary. The court stated in its second supplemental judgment:

'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 defendant, DWIGHT KEITH HATCH, for his successful efforts in connection therewith. The Court has also considered, to some extent, the fact that the plaintiff has wilfully and deliberately destroyed any meaningful father-daughter relationship between the defendant, DWIGHT KEITH HATCH, and his children * * *.'

If we understand the court below, it is saying that the husband should be rewarded at the expense of the wife for his successful preservation of the community property, one-half of which he owned. And that the wife should be punished by taking away her vested interest which she had worked for 15 years as a partner of her husband to accumulate.

By A.R.S. § 25--318A,* the Legislature directed:

'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 * * *.'

and then, immediately following this language, added:

'according to the rights of each of the parties * * *.'

Obviously these latter words must have some meaning. They can only mean the rights which the parties had at the time the divorce was sought.

This Court has construed the statute to place the division of the community property within the sound discretion of the court. See e.g., Nace v. Nace, 104 Ariz. 20, 448 P.2d 76 (1968). That sound discretion means the apportionment of the community estate upon dissolution must be substantially equal. Britz v. Britz, 95 Ariz. 247, 389 P.2d 123 (1964); Honig v. Honig, 77 Ariz. 247, 269 P.2d 737 (1954). In the absence of sound reason, each spouse must receive substantial equivalents.

'Under our law, community property belongs equally to both husband and wife, and when it is divided between the parties in consequence of divorce proceedings, while it is true that the court has wide discretion as to what portion shall be awarded to each party, nevertheless in the absence of some reason requiring a contrary action, the presumption is that the parts received by each spouse should be substantially equivalent.' Schwartz v. Durham, 52 Ariz. 256 at 265, 80 P.2d 453 at 456 (1938).

Property may not be distributed in order to reward one party or punish the other....