Ivancovich v. Ivancovich

• Decision Date: 01 October 1975
• Docket Number: CA-CIV,No. 2,2
• Citation: 540 P.2d 718,24 Ariz.App. 592
• Parties: Byron IVANCOVICH, Appellant, v. Jane H. IVANCOVICH, Appellee. 1807.
• Court: Arizona Court of Appeals

Page 718

540 P.2d 718

24 Ariz.App. 592

Byron IVANCOVICH, Appellant, v. Jane H. IVANCOVICH, Appellee.

No. 2 CA-CIV 1807.

Court of Appeals of Arizona, Division 2.

Oct. 1, 1975.

Rehearing Denied Nov. 7, 1975.

Review Denied Dec. 9, 1975.

[24 Ariz.App. 593] DeConcini McDonald & Brammer, P.C., by John R. McDonald, Tucson, for appellant.

Merchant, Lohse & Bloom, by Cliffton E. Bloom, Tucson, for appellee.

OPINION

HOWARD, Chief Judge.

This is an appeal from a decree of dissolution of marriage in which appellee was awarded the family residence and appellant was awarded what was determined to be community bonds.

Appellant presents two questions on appeal--whether the trial court was correct in its determination that the family residence was community property and whether, assuming it was correct, it abused its discretion in dividing the community property.

The facts most favorable to affirming the court below are as follows: Byron and Jane Ivancovich were married on October 22, 1937 in Tucson. Appellant, in addition to cash and notes, owned at the time of the marriage, a homestead existing of 530 acres in the Catalina Foothills in Tucson. He was a member of the State Bar of Arizona and was employed as property manager for his father's estate and also acted as trustee and executor in several matters. It was from these sources that community income was derived. In addition to community income, appellant received separate income during the years 1943 through 1952 in the sum of $128,619. In the years 1953 to 1963, appellant amassed separate property which consisted of tax free municipal bonds in the sum of $679,341.10 and $97,108.21 in cash used to purchase realty contracts and, in 1964, to purchase in additional $126,000 in municipal bonds. The cash used to purchase the foregoing came from the estate of appellant's father, sale of the homestead, and from the sale of other bonds.

During the entire period of the marriage from 1937 to 1973, appellant had such absolute and complete control of all community finances that appellee had never been permitted to draw upon any community bank account of joint checking account. Furthermore, appellant never informed appellee of his separate finances or the extent and nature of the community assets and finances. During the marriage appellant did not pay for or purchase appellee's clothes or automobile; she paid for them from her separate funds.

In 1950 appellee received a substantial gift from her father consisting of 500 shares of Class A General Motors stock, which was subsequently split into 3,000 shares of General Motors common stock. The income therefrom was used by appellee to purchase her clothes, books and personal needs and almost every week thereafter she used a portion of her own funds to supplement the food allowance given her by appellant. Appellee received a substantial inheritance in 1971 after both her parents had died, which she kept in a separate checking and savings account under her exclusive control. From 1958 through 1973, the expenses in connection with the maintenance, upkeep and management of the family residence were paid by appellee from her separate funds and during that period appellee spent $163,681.92 of her separate funds ($24,025.99 for patio construction and landscaping, $17,350.13 for general repairs, replacement of appliances, renovation of kitchen, painting and plumbing repairs and the balance for the payment of household costs, including wages paid to maids and gardeners).

Appellant testified that he expended all the community income for community expenses except for the sum of $24,492, which he used to purchase tax free municipal bonds.

On April 26, 1951, a lot on which the residence at 50 Calle Belleza is now located was deeded from Esther Richardson to 'Byron Ivancovich and Jane H. Ivancovich, husband and wife.' The consideration for the deed, approximately $7,000, was paid to the escrow agent by three separate checks drawn on two accounts which were controlled exclusively by Mr. Ivancovich and which admittedly had been used as a depository for both separate and community funds.

Construction on the house began in the latter part of 1951 and was completed sometime in 1952. The construction costs were approximately $60,000 paid by checks drawn on the same two accounts, and approximately $3,200 contributed by appellee's father for initial landscaping. In addition to these expenditures, appellee spent approximately $24,000 from her separate funds for patio construction subsequent to the completion of the house.

The trial court based its ruling on the theory that separate and community funds had been co-mingled and could not be traced. Appellant argues that they can be traced. Even assuming arguendo that appellant's position is correct, the record shows the home to be community property. Where the husband pays for real property and causes it to be given in the name of the husband and wife, the law presumes a gift from the husband resting upon the proposition that he is discharging his legal duty to provide support for his wife. Becchelli v. Becchelli, 109 Ariz. 229, 508 P.2d 59 (1973). This presumption may be rebutted by clear and convincing evidence. Becchelli v. Becchelli, supra. There was no such evidence in this case. It was not until the divorce proceedings that appellant made any claim that the home was his separate property. This case is not unlike Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945). The trial court did not err in concluding that the residence was community property.

Turning our attention to the division of community property, appellant valued...