Headley v. Headley

• Decision Date: 26 October 1966
• Docket Number: No. 8042,8042
• Citation: 419 P.2d 510,101 Ariz. 331
• Parties: Vernon G. HEADLEY, Appellant, v. Christine R. HEADLEY, Appellee.
• Court: Arizona Supreme Court

Page 510

419 P.2d 510

101 Ariz. 331

Vernon G. HEADLEY, Appellant, v. Christine R. HEADLEY, Appellee.

No. 8042.

Supreme Court of Arizona, In Banc.

Oct. 26, 1966.

Jack Cavness, Cavness, DeRose & Senner, Phoenix, for appellant.

John P. Frank, John J. Flynn, Jeremy E. Butler, Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for appellee.

McFARLAND, Justice:

This appeal is from an order of the lower court directing appellant to sign a deed to certain property awarded to appellee by the court in a decree of divorce.

The facts show appellee filed a complaint in which she alleged the property in question was community property. The case was tried and a decree of divorce was entered on the 28th day of February, 1963. On the 23rd day of April, 1963, appellee applied for an order directing appellant to sign deeds to the property awarded to appellee in the decree of divorce. On the 7th day of June, 1963, the court signed the order directing defendant to sign the deeds. It was from this order that the appeal was taken.

It is the contention of appellant that the court was without jurisdiction to award to appellee the property set forth in paragraphs 3 and 5 of the decree. The property in paragraph 3 is described as follows:

'Lots 2 and 3, RANCHO VENTURA, according to the plat of record in the office of the Maricopa County Recorder in Book 34 of Maps, Page 10, except the West 100 feet thereof.'

The property in paragraph 5, known as Parcel No. 2, was located in Yuma County and described as follows:

'The North half of Section 31, Township 4 North, Range 14 East, of the Gila and Salt River Base and Meridian.'

Appellant, at the hearing on the application for an order directing appellant to sign the deeds, introduced two deeds, the first being a joint tenancy deed to appellant and his wife, appellee, dated the 8th day of February, 1956, which deed was accepted and approved by both Vernon G. Headley and Christine R. Headley, grantees. The second deed was one of joint tenancy for the property described in paragraph 5 in Yuma County to Vernon G. Headley and Christine R. Headley, his wife, dated April 15, 1960, and approved by Vernon G. Headley and Christine R. Headley. It is the contention of appellant that at the time these deeds were executed the court did not have jurisdiction in a divorce case to distribute property held by the parties in joint tenancy, and that the 1962 amendment to A.R.S. § 25--318 subsec. A is not applicable in a divorce case to property acquired before date of the amendment, which gives the court jurisdiction to distribute property held in joint tenancy with the right of survivorship. Paragraph A of A.R.S. § 25--318, reads as follows:

'A. 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, according to the rights of each of the parties and their children, without compelling either party to divert himself or herself of title to separate property, except that as to property held by the parties either as joint tenants with the right of survivorship, as tenants in common, or as tenants by the entirety, the court may in the same action, on its own initiative or on petition of either party, order division of such property, or enter an order directing partition of such property in the manner provided by title 12, chapter 8, article 7.'

Prior to this amendment, this court held on March 31, 1952, in the case of Collier v. Collier, 73 Ariz. 405, 242 P.2d 537, as follows:

'The right of husband and wife to hold property as joint tenants in derogation of our community property statutes has been recognized by this court provided it clearly appears the spouses have agreed that the property should be taken in that manner. * * *' 73 Ariz. at 411, 242 P.2d at 540.

We agree with appellant that this amendment did not give retrospective effect to the statute as to property vested in parties before the amendment. Garry v. Creswell, 1 Cal.2d 1, 33 P.2d 1, 92 A.L.R. 1343 (1934); Jenkins v. Jenkins, 219 Ark. 219, 242 S.W.2d 124, 27 A.L.R.2d 861 (1951). A statute will not be given retrospective effect unless it clearly appears the legislature so intended. A.R.S. § 1--244; Krucker v. Goddard, 99 Ariz. 227, 408 P.2d 20; Gallo v. Industrial Commission, 83 Ariz. 392, 322 P.2d 372; Rodriquez v. Terry, 79 Ariz. 348, 290 P.2d 248; Employment Security Commission of Arizona v. Arizona Citrus Growers, 61 Ariz. 96, 144 P.2d 682; Gietz v. Webster, 46 Ariz. 261, 50 P.2d 573; Bartlett v. MacDonald, 17 Ariz. 194, 149 P. 752; Cummings v. Rosenberg, 12 Ariz. 327, 100 P. 810.

The legislature may enact retrospective legislation affecting only remedies or proceedings for the enforcement of existing rights, when it does not disturb vested rights. Ferguson v. Superior Court, 76 Ariz. 31, 258 P.2d 421. In the instant case, however, both parties alleged in their pleadings that the property was community property. No appeal was taken by appellant from the judgment of the court dividing the property which both parties alleged was community property. The appeal was taken from the order of the court made subsequent to the decree which required appellant to sign deeds to the property. The parties are bound by their own pleadings and may not deny an allegation of their pleadings without first having amended the pleadings. Adams v. Bear, 87 Ariz. 288, 350 P.2d 751; Stamatis v. Johnson, 71 Ariz. 134, 224 P.2d 201,...