Lawwill v. Lawwill

• Decision Date: 14 November 1973
• Docket Number: CA-CIV,No. 2,2
• Citation: 515 P.2d 900,21 Ariz.App. 75
• Parties: Cynthia S. LAWWILL, Appellant, v. Benjamin H. LAWWILL, Appellee. 1339.
• Court: Arizona Court of Appeals

Page 900

515 P.2d 900

21 Ariz.App. 75

Cynthia S. LAWWILL, Appellant, v. Benjamin H. LAWWILL, Appellee.

No. 2 CA-CIV 1339.

Court of Appeals of Arizona, Division 2.

Nov. 14, 1973.

Rehearing Denied Jan. 10, 1974.

William D. Browning, Tucson, for appellant

Healy & Beal, P.C., by William T. Healy, Tucson, for appellee.

OPINION

HATHAWAY, Chief Judge.

Did the lower court abuse its discretion in granting a Rule 60(c) motion to amend a divorce decree as to a particular item of personal property? That is the question to be resolved on this appeal.

Briefly, the record reflects the following. In 1971, appellee filed a divorce complaint to which were attached four schedules of property denominated either community or separate. A certain Farny watercolor painting, which is the subject of this appeal, was not specifically described. The complaint, however, referred to Schedule C as descriptive of the community property of the parties. Schedule C included:

'2. Contents of family dwelling located at 1225 East Magee Road, including furniture, fixtures, furnishings, appliances and effects situated therein, subject only to the exceptions set forth in Schedule D--2 designated as Miscellaneous Personal Property.' (The subject painting was not included in D--2).

At the trial, counsel stipulated that the parties had agreed to a division of property including:

'3. . . . that the real property described as being located at 1225 East Magee Road, Tucson, Arizona, . . . be awarded to the wife together with all furnishing contained therein except for certain exclusions set forth hereinafter. (The exclusions did not include the painting)

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6. . . . that all of the property as set forth in Schedule C--2 be awarded to the wife.'

The divorce decree which incorporated the parties' agreement as to property division awarded to appellant as her sole and separate property the real property described at 1225 E. Magee Road, Tucson, Arizona, and:

'(A)ll the contents of the family dwelling located at 1225 E. Magee Road, including all furniture, fixtures, furnishings, appliances and effects situated therein as of the date of separation of the parties except those items specifically awarded to (appellee) hereinabove; including but not limited to all household goods, silverware, china, clothing and jewelry and $5,500 in cash to (appellant) payable simultaneously with the execution and entry of this Judgment.'

Subsequent to entry of the divorce decree, appellant instituted show cause proceedings complaining inter alia that certain specifically described items, including the watercolor painting, were missing from the Magee Road house. The parties resolved their differences as to all of the property except the painting, and appellee filed the Rule 60(c) motion. The motion alleged that the divorce decree did not reflect the agreement of the parties as stipulated in open court, that the painting was never between the parties, that appellant never requested the painting nor did appellee intend for her to have same, and that the court had no jurisdiction to award the painting to appellant since it was appellee's separate property, having been a gift from his mother during the parties' marriage. Attached to the motion was an affidavit of appellee's mother which stated that she had given her son a Farny watercolor as his sole and separate property in 1969 and that she gave it to her son at that time because she was moving out of her residence and had no place to put the painting, and, further, it has always been her intention that the painting go to her son upon her death.

A hearing was duly held and the only testimony presented by appellee was directed to the issue of whether the painting, prior to divorce, was a gift to him alone and therefore his separate property. The court found that it was the intention of appellee's mother to give the painting to her son, that it was a gift to him from his mother and therefore should remain his property.

Assuming arguendo that the painting was the sole and separate property of appellee at the time the parties were divorced, such fact did not ipso facto preclude awarding it to appellant. Appellee, in his verified complaint for divorce, specifically alleged that all furniture, fixtures, furnishings, appliances and effects situated at 1225 E. Magee Road were community property. Both he and appellant specifically agreed that appellant was to have such property. Where the parties themselves treat the property as community property and, as far as the record shows, it was considered community property both by them and the court during the divorce trial, the court is thereby vested with jurisdiction to award it to one or the other of the spouses. Headley v. Headley, 101 Ariz. 331, 419 P.2d 510 (1966); Gage v. Gage, 11 Ariz.App. 76, 462 P.2d 93 (1970).

The very language of the parties' agreement, incorporated into the divorce decree, is very broad and all-encompassing. The word 'furniture' itself is a very comprehensive term, and has been construed to include pictures. See Patrons' Mutual Aid Society v. Hall, 19 Ind.App. 118, 49 N.E. 279 (1898); Ruffin v. Ruffin, 112 N.C. 102, 16 S.E. 1021 (1893). When used in reference to a house, it has been defined as meaning all personal chattels which may contribute to the use or convenience of the householder or the ornament of the house. Fitzsimons v. Frey, 153 Neb. 124, 43 N.W.2d 531 (1950); Marquam v. Sengfelder, 24 Or. 2, 32 P. 676 (1893).

The parties also agreed that appellant was to have all 'effects' situated in the house as of the date of separation with the exception of certain items specifically reserved to appellee. The painting was not included in the exceptions. The word 'effects' standing alone is comprehensive enough to include every article of personal property. In re Burnside's Will, 185 Misc. 808, 59 N.Y.S.2d 829 (1945). However, in the context...