LOVERIDGE v. LOVERIDGE, 5108

• Decision Date: 16 September 1948
• Docket Number: No. 5108,5108
• Citation: 52 N.M. 353,198 P.2d 444
• Parties: LOVERIDGE v. LOVERIDGE.
• Court: New Mexico Supreme Court

52 N.M. 353

198 P.2d 444

LOVERIDGE

v.LOVERIDGE.

No. 5108.

Supreme Court of New Mexico.

Sept. 16, 1948.

[198 P.2d 444, 52 N.M. 354]

LaFollette & Shaffer and William B. Darden, all of Albuquerque, for appellant.

Iden & Johnson and James T. Paulantis, all of Albuquerque, for appellee.

SADLER, Justice.

The plaintiff (appellee) sued defendant for a divorce, dissolution of the community and division of property. She was awarded a divorce upon the ground of incompatibility and certain real property was set over to each as his or her separate property. Without attempting to say with any definiteness or certainty whatsoever just what property set over to each as his or her separate property represented a division of the community, or an alimony award or, save in one particular, was purchased with trust funds of the wife, the court sought to fortify its awards by decreeing that the awards made the wife should be consideredas made to her on four separate theories, to-wit:

'First: Of her separate property;

'Second: The enforcement of a constructive trust;

'Third: As her share in the community property, and

'Fourth: In lieu of alimony.'

The defendant appealed and has assigned several claims of error, all relating to the division of the property. No effort is made to question here the trial court's action in granting plaintiff a divorce. The errors assigned are argued under six points and will be disposed of in the order argued so far as found necessary to a decision.

Under point 1, counsel advances the novel idea that where husband and wife have become permanently separated, a statutory cause of action ofr dissolution of the communitythus arising, the community is frozen and placed in a state of suspense; that all property subsequently acquired by either spouse becomes the separate property of him or her so acquiring it, to be so adjudged whenever dissolution of the community subsequently occurs, by suit or otherwise. It is pointed out that the law does not favor litigation. Hence, that a party to the marital union should not be penalized for failing to lead his mate, or hers, into court to air domestic strife or incite public gaze. It is said the due process clause of the constitution of the United States is violated by drawing into the community property acquired by either spouse following permanent separation. If the community property system, deriving from the civil law of Spain and Mexico, dictates otherwise, it runs counter to the due process clause of the federal constitution and must give way to it. So runs the argument.

As a doctrine of morality, something perhaps can be said in support of the position taken in argument by counsel. We are not prepared to express an opinion on it when so viewed. As a legal proposition, however, it falls flat for want of support either in our decisions or in applicable statutory provisions. Where the legislature intended to alter the legal consequence attaching to property of either spouse acquired after marriage otherwise than by gift, devise or descent, it so provided. 1941 Comp. § 65-307, giving the wife as separate property her personal earnings accumulated while living apart from the husband following a separation. We find no such provision in the statutes in favor of the husband. Achievement of the result approved by counsel must await legislative action. We cannot supply it here. No violation of due process is involved.

It is next urged that the trial court erred in holding the husband (defendant) liable as a constructive trustee of a sum approximating$650, realized by him in liquidating the equity of the wife in residence property in El Paso, Texas. It was separate property of hers which was being foreclosed against under a mortgage theretofore executed. The fund when realized was to be used, as found by the trial court, in the purchase of certain residence lots, among others, described in Exhibit 'B' of the plaintiff which was introduced in evidence. Instead, it was used to support the community, under the court's findings. Accordingly, the ten (10) lots mentioned in Exhibit 'B' were awarded to plaintiff as her separate property.

While challenging sufficiency of the evidence to support these findings, defendant's counsel fails to comply with Supreme Court Fule 15, Sec. 6, 1941 Comp. § 19-201, by stating in his brief the substance of all evidence bearing upon the issue, with proper reference to the transcript. Under the conditions mentioned, ordinarily, we will not entertain such a claim of error. The burden of counsel's argument in this connection seems to be that defendant's state of health and financial condition at the time, being such as they were, as the wife, the plaintiff was legally obligated to contribute to his support. Hence, any use...