McFadden v. McFadden

• Decision Date: 30 March 1921
• Docket Number: Civil 1866
• Citation: 22 Ariz. 246,196 P. 452
• Parties: G. F. McFADDEN, Appellant, v. ELLA McFADDEN, Appellee
• Court: Arizona Supreme Court

196 P. 452

22 Ariz. 246

G. F. McFADDEN, Appellant, v. ELLA McFADDEN, Appellee

Civil No. 1866

Supreme Court of Arizona

March 30, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Modified and affirmed.

Messrs Hayes & Allee, for Appellant.

Mr. G W. Silverthorn, for Appellee.

OPINION

ROSS, C. J.

Appellee filed her complaint against appellant, charging him with cruelty and failure to provide; asked for a dissolution of the marriage relation, for a division of the community property, the custody of the four year old child -- issue of said marriage -- and for the sum of fifty dollars per month for the support of herself and child.

Appellant denied the charges of cruelty and failure to provide, and by way of cross-complaint, claimed the right to a divorce from the appellee on the grounds of willful desertion; asked for a division of the community property, and that he be given the custody of the minor child.

Upon the date set for trial, appellee failed to put in an appearance, either personally or by attorney; and such inattention not being shown to be excusable, at the request of appellant, the court proceeded to hear the evidence of appellant in support of his cross-complaint.

The admissions in the pleadings and the evidence presented, in brief, the following facts: That appellee and appellant were married in the year 1911 at Frederickstown, Missouri. At the time appellee had thirteen hundred dollars and the appellant had two hundred dollars. These sums were invested in different enterprises, and, with the joint labors and efforts of both of them, grew until in 1917 their total amounted to some seven thousand dollars. In October, 1917, they removed to Mesa, Arizona, where they were residing at the time of the institution of the suit. At Mesa they bought a home, paying therefor seventeen hundred and fifty dollars. The rest of the community property consisted of an automobile, household furniture, a cow, some chickens, three hundred and forty-four dollars in cash, and notes on parties living in Missouri for the sum of twenty-five hundred dollars.

From a reading of the evidence as it is written out, it is difficult to say who, or whether either one of the parties, is seriously at fault. While all the witnesses were appellant's and there were several of them, there is no direct word of accusation or condemnation of the appellee. They likewise vouch for the good behavior, industry, and kindliness of the appellant.

After holding the case under advisement some ninety days, the court rendered its decree. In the minute entry it is recited that --

The court "finds that the defendant [appellant] is entitled to the relief prayed for in his cross-complaint; and it is ordered that a judgment be entered herein for the defendant in accordance with such findings, which said judgment, when signed by the court, shall be entered in the judgment-book."

On the same date the court signed a formal judgment in which the marriage bonds were dissolved upon the evidence in support of the cross-complaint for desertion. The appellee was given the custody of the minor child. It was decreed that appellee be "awarded as and for her separate property, and freed from all claims of defendant, as permanent alimony and as her share of the community property," the home at Mesa, Arizona, notes for the sum of twenty-five hundred dollars, certain household furniture, and one cow; that the appellant be awarded one automobile, chickens, furniture, and three hundred and forty-four dollars in cash.

The first assignment appellant makes is that the decree of the court was entirely inconsistent with and contradictory of the findings and order for judgment, and he argues that the findings and the order for judgment should prevail over the formal judgment and decree signed by the judge.

That there is conflict between the minute entry and the formal judgment is plain to be seen. We think, however, appellant, when he designates the minute entry as the findings of the court, is in error. When a case is tried by the court, the statute (paragraph 528, Civ. Code) makes it the duty of the court, at the request of either party, to make written findings of fact, stating the facts found by the court and the conclusions of law separately. The minute entry is not in conformity with this statute; it being the record kept by the clerk only. There are no written findings of fact by the court on file in the record. At most, we think the minute entry is evidence that the court ordered a judgment, the terms thereof to be ascertained when it was written up and signed by the court.

Moreover, we think, in conformity with the rule in at least one jurisdiction, that where there is conflict between the entry made by the clerk in the minutes and the solemn judgment of the court, the terms of the latter should be given force and effect, rather than of the former. Gould v. Austin, 52 Wash. 457, 100 P. 1029; Landry v. Seattle Ry. Co., 100 Wash. 453, 171 P. 231.

It is next contended by the appellant that the decree in awarding the custody of the child to appellee, and in awarding her permanent alimony, and in the division of the community property, was not sustained by the evidence, and is contrary to law. As to the fitness and ability of the parents to have and care for the minor child, it cannot be said, as we read the cold record, that the evidence preponderates either way. The child, a boy, is of very tender years, and should have if possible, the care and affection of his mother. This fact, doubtless, had weight with the court in awarding his custody. The court also had the advantage of seeing and observing the appellant, his manner and demeanor, and...