Long v. Stratton

• Decision Date: 01 November 1937
• Docket Number: Civil 3918
• Citation: 72 P.2d 939,50 Ariz. 427
• Parties: CURTIS W. LONG, Petitioner, v. LEE N. STRATTON, Judge of the Superior Court of Graham County, Respondent
• Court: Arizona Supreme Court

72 P.2d 939

50 Ariz. 427

CURTIS W. LONG, Petitioner, v. LEE N. STRATTON, Judge of the Superior Court of Graham County, Respondent

Civil No. 3918

Supreme Court of Arizona

November 1, 1937

Original proceeding in Certiorari. Proceeding had in lower court affirmed.

Mr Benjamin Blake and Messrs. Woolf & Shute, for Petitioner.

Mr Rouland W. Hill, for Respondent.

OPINION

ROSS, J.

Petitioner Long was, on February 23, 1937, cited by respondent to show cause why he should not be punished for contempt for failure to pay to his divorced wife, Waldy O. Long, monthly installments as provided in the decree of divorce; and he contending that respondent was without jurisdiction to punish for contempt, sued out a writ of certiorari that this court might review the proceedings.

The grounds upon which petitioner predicates his contentions are: (1) That the divorce complaint does not state a cause of action; and (2) that the parties having made a community property settlement between themselves it was binding upon them as also upon the court, and that the court could not in its decree of divorce provide for alimony to be paid the wife, and its attempt to do so was null and void. In view of these contentions, we set out such portions of the complaint for divorce and of the agreement to settle community property rights and of the decree as are material to the questions raised.

The complaint was filed in the superior court of Graham county on January 20, 1934, and, after alleging residence, the marriage, that there were no children, alleged and prayed as follows:

"IV. That since the marriage the defendant has treated the plaintiff in a cruel and inhuman manner and in particular as follows: that the defendant has cursed and abused the plaintiff and accused her of many acts not becoming to the dignity of the marriage relation and has threatened to use physical violence, to-wit, by slapping her."

"VI. That there is community property belonging to plaintiff and defendant of questionable value."

"VII. That together with this complaint there is filed an agreement of separate maintenance and settlement of property rights, marked 'Exhibit A,' which has been agreed upon by the plaintiff and defendant and the plaintiff is asking this honorable court to approve this settlement of property rights.

"Wherefore, Plaintiff demands judgment: ...

"II. That the court approve the agreement of property settlement marked 'Exhibit A' in plaintiff's complaint," and for equitable relief.

The judgment, dated February 19, 1934, after reciting the presence of plaintiff and her attorney, states petitioner, as defendant, did not appear, although regularly served with process, and proceeds:

"3. That the defendant is guilty of cruel and inhuman treatment of plaintiff.

"4. That the plaintiff, Waldy O. Long, is entitled to an absolute divorce from the defendant, Curtis W. Long.

"5. That the plaintiff and defendant have agreed on a property settlement, which was made part of plaintiff's complaint and which is in words and figures as follows, to-wit:

"'Exhibit A'

"Agreement.

"This agreement made and entered into this 20th day of January, 1934 by and between Waldy O. Long, party of the first part, and Curtis W. Long, party of the second part.

"Whereas, the parties hereto have been living as husband and wife since July 5, 1922, and as husband and wife have accumulated property and have also become greatly indebted, and that their debts now probably exceed in value their property, and it is the mutual desire of both parties hereto to live separate and apart and to make a division of all of their community property and as to such portion as each shall be granted it is their desire that that portion given to each of them shall be separate property of the respective parties.

"Whereas, the party of the first part desires to sell and convey to the party of the second part all of her right, title and interest in and to all of the community property of the party of the first part and contemporaneous with this agreement desires to relieve the party of the second part of all his responsibility and obligations incurred by law to support and maintain the said party of the first part.

"Witnesseth: The party of the first part does hereby in this instrument sell, transfer, set over, convey and assign to the party of the second part all of the community interest of said party of the first part in and to the community property of Waldy O. Long and Curtis W. Long, consisting of both personal property and real estate, and relieve said party of the second part of all his obligations to maintain and support said party of the first part, for and in consideration of the following:

"The party of the second part is to pay to the party of the first part Forty and no/100 ($40.00) Dollars per month, each and every month, until said party of the first part shall remarry or until four (4) years shall have elapsed, and upon the remarriage of said party of the first part or said four years to have elapsed, whichever shall occur first, the party of the second part shall pay to the party of the first part the sum of Five Hundred and no/100 ($500.00) Dollars. In the event of the remarriage of the party of the first part then all monthly payments shall cease and after thirty days' notice the party of the second part will be obligated to pay to the party of the first part said Five Hundred and no/100 ($500.00) Dollars.

"It is further understood by both parties hereto that the party of the first part is to have all of the furniture belonging to the community of Waldy O. Long and Curtis W. Long now located in the house which they are living in in Safford, Arizona, except one dresser, and in lieu of this dresser the party of the first part is to have a dresser now located in Miami, Arizona.

"The above entitled payments of Forty Dollars per month until remarriage or four years shall have expired, whichever shall occur first, together with the Five Hundred Dollar payment, and the furniture described above, shall constitute a full and complete settlement of all of the community interest between the parties hereto, together with the party of the first part's right of support from the party of the second part."...

The judgment then proceeds:

"Now, therefore, the Court finds that the $40.00 payments outlined in the Agreement shall be paid on or before the 19th day of each and every month, commencing this date.

"Now, therefore, it is ordered, that the plaintiff have an absolute divorce from the defendant, that the property settlement as prayed for in plaintiff's complaint and marked 'Exhibit A' is approved by this Court, together with supplemental agreement of plaintiff and defendant granting plaintiff clear title to one Graham Paige Sedan, Engine No. 722229, Serial No. 717047, Model No. 615, Year 1929; and the defendant is hereby ordered to commence on this date (February 19, 1934) to make the monthly $40.00 payments as outlined in Agreement Marked 'Exhibit A' of plaintiff's complaint."

It appears that Waldy O. Long has not remarried; that petitioner has not paid her the monthly installments of $40 since July, 1935; and that unless he purges himself by making payments, or shows that he has no assets and is unable to pay, the court will punish him for contempt.

The contention that the decree of divorce is null and void because the facts stated in the complaint as grounds for divorce are insufficient to give the court jurisdiction cannot be entertained in this proceeding. A judgment cannot be impeached collaterally for defects in pleadings which are amendable, even though the pleadings are bad on general demurrer. 34 C.J. 560, § 860. Cited to this text is Tube City Min. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. 1916E 303, in which it was held that if the case stated in a complaint belonged to a general class over which the court's authority extended, there is jurisdiction, and the court has power to decide whether the pleading is good or bad. This is the well-settled rule. Collins v. Superior Court of Maricopa County, 48 Ariz. 381, 62 P.2d 131; State v. District Court of Fifth Judicial Dist., 100 Mont. 131, 46 P.2d 39.

As to whether the court under the law and the facts had jurisdiction to order or direct the petitioner to pay his wife on the 19th day of each month $40 is the next question. The contract settling the property...