Kennedy v. Kennedy, No. 6978

CourtSupreme Court of Arizona
Writing for the CourtUDALL
Citation93 Ariz. 252,379 P.2d 966
PartiesRaymond A. KENNEDY, Appellant, v. Mary R. KENNEDY, Appellee.
Decision Date27 March 1963
Docket NumberNo. 6978

Page 966

379 P.2d 966
93 Ariz. 252
Raymond A. KENNEDY, Appellant,
v.
Mary R. KENNEDY, Appellee.
No. 6978.
Supreme Court of Arizona, In Division.
March 27, 1963.

[93 Ariz. 253]

Page 967

Carl W. Divelbiss, Phoenix, for appellant.

Hughes & Hughes, and Johnson & Stewart, Phoenix, for appellee.

[93 Ariz. 254] UDALL, Vice Chief Justice.

This is a contested divorce action. A complaint was filed by the wife, charging mental and physical cruelty. The husband counterclaimed, charging adultery. A divorce was granted on the wife's complaint, a division of the property was ordered, and alimony was awarded to the wife. The husband appealed, alleging in his assignments of error that the wife was not entitled to a divorce as her evidence was uncorroborated, that an improper division of property was ordered and that excessive fees were allowed the wife's attorneys and a receiver and his attorney. He further contends that the court erred in denying his claim for divorce, and in awarding alimony to the wife.

The evidence, as collected in the cold pages of the record, appears to favor the husband. The occurrences charged by the wife to be instances of cruelty were of

Page 968

a substantial nature, although the corroboration of these occurrences, which came exclusively from the husband's testimony, was slight. The husband's evidence of adultery on the part of the wife was persuasive, and corroborated by other witnesses. The wife denied these charges on the stand, however, and from the closer vantage point of his bench the trial judge believed the wife and disbelieved the husband and his witnesses. We do not find the evidence so overwhelmingly in favor of the husband that the findings of the trial court were unreasonable and cannot be sustained, Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960).

Under A.R.S. § 25-317 subd. B, 1 a divorce cannot be granted on the uncorroborated testimony of a party. Where the divorce is contested, and there is no suspicion of collusion this corroboration may be slight, Hemphill v. Hemphill, 84 Ariz. 95, 324 P.2d 225 (1958); see Lawson v. Lawson, 88 Ariz. 352, 356 P.2d 701 (1961). Where the charge is cruelty, it is not necessary that every instance charged be corroborated, Williams v. Williams, 86 Ariz. 201, 344 P.2d 161 (1959); Hecht v. Hecht, 172 Cal.App.2d 381, 342 P.2d 360 (1959).

Corroboration need not be confirmation. It is necessary only that the testimony of the complaining part be supported and strengthened by the coroborating evidence, not that it be confirmed in detail, Martin v. Martin, 166 Va. 109, 184 S.E. 220 (1936). Corroborating testimony is sufficient if it tends to satisfy the impartial and reasonable mind that the plaintiff's material testimony is true, Wilson v. Wilson, 229 Minn. 126, 38 N.W.2d 154 (1949); Anderson v. Anderson, 190 Miss. 508, 200 So. 726 (1941).

[93 Ariz. 255] One instance of alleged cruelty on the part of the husband in this case occurred while the parties were engaged in the operation of the machine shop they owned. According to the wife's testimony, one of the shop employees took improper liberties with her person. When she reported this to her husband in the presence of other employees he replied, 'Maybe you asked for it.' She then asked her husband to fire the offending worker and he answered, 'It's your problem, you fire him.' She further stated that when she attempted to discharge the employee, the employee said, in the presence of her husband, 'You can't fire me.' Her husband said nothing but finally ordered the man back to work. The husband's version of this incident indicates that the employee was retained only after he had apologized to Mrs. Kennedy and Mrs. Kennedy had accepted the apology. However, his testimony confirms that the incident occurred and that the offending employee was not discharged, thus sufficiently corroborating the testimony of appellee.

Other acts of cruelty by the husband were alleged to have occurred on the evening the wife left the Kennedy home. She testified that she returned late after a church choir practice, and that in an ensuing argument about where she had been and who she had been with, her husband called her a 'whore' and beat her with his fists. Although he denied these specific charges, the husband admitted that this incident occurred, and that during the course of the argument he physically restrained his wife by holding her against her will for 'acouple of minutes', so that he could talk to her. This again is sufficient corroboration of his wife's testimony. In view of this testimony the trial court did not err in granting a divorce to the wife.

In challenging the distribution of property made by the trial judge, the appellant contends that the sum of $4,500 brought by the parties from Ohio was his sole and separate property. The trial court found that this sum, which was kept in a joint bank account of the parties in Ohio, was

Page 969

used in the purchase of the real property which comprised part of the parties' community estate. We fail to find in the record evidence sufficient to rebut the presumption that the real property owned by the parties was, in its entirety, community property.

'There is a legal presumption in this jurisdiction that all property acquired by either spouse during coverture takes on a community character. This presumption can be rebutted only by 'strong', 'satisfactory', 'convincing', 'clear and cogent', or 'nearly conclusive evidence'. In this respect it differs from most legal presumptions that are dispelled immediately upon the production of any evidence negativing the presumption.' Porter v. Porter, 67 Ariz. 273, 279, 195 P.2d 132, 136 (1948).

[93 Ariz. 256] See also In re Stanger's Estate, 75 Ariz. 399, 257 P.2d 593 (1953); Evans v. Evans, 79 Ariz. 284, 288 P.2d 755 (1955).

The appellant next contends that the division of community property ordered by the court was grossly unfair and constitutes an abuse of judicial discretion. The principal community assets of the parties consisted of certain land in Tempe, a building thereon occupied as a machine shop, the machinery and equipment utilized in this shop, and three other small buildings on this property comprising a dwelling and low-income rental...

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38 practice notes
  • Porter v. Porter, No. 7594
    • United States
    • Supreme Court of Arizona
    • July 14, 1966
    ...property and nearly conclusive evidence is required to overcome the presumption which alone will support a judgment. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d Payments for separate maintenance become vested when they become due and cannot be modified thereafter. McClanahan v. Hawkins, supr......
  • Nace v. Nace, No. 1
    • United States
    • Court of Appeals of Arizona
    • October 30, 1967
    ...on appeal unless such discretion has been 'abused.' Reed v. Reed, 82 Ariz. 168, 171, 309 P.2d 790, 792 (1957); and see Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963); Honig v. Honig, 77 Ariz. 247, 269 P.2d 737 (1954); Schwartz v. Durham, 52 Ariz. 256, 80 P.2d 453 The 'reason' advance......
  • Kuker v., No. 2 CA-CV 2016-0149-FC
    • United States
    • Court of Appeals of Arizona
    • June 28, 2017
    ...clear and convincing evidence." Schickner v. Schickner, 237 Ariz. 194, ¶ 22, 348 P.3d 890, 895 (App. 2015); see also Kennedy v. Kennedy, 93 Ariz. 252, 255, 379 P.2d 966, 969 (1963) (presumption can be rebutted by strong, satisfactory, convincing, clear and cogent, or nearly conclusive evide......
  • Smith v. Tang, No. 7630
    • United States
    • Supreme Court of Arizona
    • March 25, 1966
    ...may modify a judgment and may render such judgment as the court below should have rendered. A.R.S. § 12--2103; cf. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966; Roberts v. Malott, 80 Ariz. 66, 292 P.2d 838; Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459, 29 A.L.R.2d 518. The verdict of th......
  • Request a trial to view additional results
38 cases
  • Porter v. Porter, No. 7594
    • United States
    • Supreme Court of Arizona
    • July 14, 1966
    ...property and nearly conclusive evidence is required to overcome the presumption which alone will support a judgment. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d Payments for separate maintenance become vested when they become due and cannot be modified thereafter. McClanahan v. Hawkins, supr......
  • Nace v. Nace, No. 1
    • United States
    • Court of Appeals of Arizona
    • October 30, 1967
    ...on appeal unless such discretion has been 'abused.' Reed v. Reed, 82 Ariz. 168, 171, 309 P.2d 790, 792 (1957); and see Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963); Honig v. Honig, 77 Ariz. 247, 269 P.2d 737 (1954); Schwartz v. Durham, 52 Ariz. 256, 80 P.2d 453 The 'reason' advance......
  • Kuker v., No. 2 CA-CV 2016-0149-FC
    • United States
    • Court of Appeals of Arizona
    • June 28, 2017
    ...clear and convincing evidence." Schickner v. Schickner, 237 Ariz. 194, ¶ 22, 348 P.3d 890, 895 (App. 2015); see also Kennedy v. Kennedy, 93 Ariz. 252, 255, 379 P.2d 966, 969 (1963) (presumption can be rebutted by strong, satisfactory, convincing, clear and cogent, or nearly conclusive evide......
  • Smith v. Tang, No. 7630
    • United States
    • Supreme Court of Arizona
    • March 25, 1966
    ...may modify a judgment and may render such judgment as the court below should have rendered. A.R.S. § 12--2103; cf. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966; Roberts v. Malott, 80 Ariz. 66, 292 P.2d 838; Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459, 29 A.L.R.2d 518. The verdict of th......
  • Request a trial to view additional results

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