Patterson v. Patterson, 8559

• Decision Date: 29 September 1967
• Docket Number: No. 8559,8559
• Citation: 432 P.2d 143,102 Ariz. 410
• Parties: John H. PATTERSON, now deceased, by and through Henderson Stockton, Executor of the Estate of John H. Patterson, Deceased, Appellant, v. Nadine M. PATTERSON, Appellee.
• Court: Arizona Supreme Court

Page 143

432 P.2d 143

102 Ariz. 410

John H. PATTERSON, now deceased, by and through Henderson Stockton, Executor of the Estate of John H. Patterson, Deceased, Appellant, v. Nadine M. PATTERSON, Appellee.

No. 8559.

Supreme Court of Arizona, In Division.

Sept. 29, 1967.

Stockton & Hing, Phoenix, for appellant.

Kenneth S. Scoville and LeRoy W. Hofmann, Phoenix, for appellee.

UDALL, Justice:

This appeal is from an order entered by the court below in a divorce proceeding fixing the amount of arrearage due and owing from the appellant, hereinafter referred to as defendant, to the appellee, hereinafter referred to as plaintiff, for alimony and support payments.

The essential facts to this appeal are as follows: Defendant, John H. Patterson, now deceased, was an experienced and successful physician and surgeon of thirty years' experience. He was married to the plaintiff, Nadine M. Patterson, from June 27, 1952, until their divorce in April of 1955. The divorce ultimately went uncontested with the parties agreeing on a property settlement in which plaintiff was transferred a one-third interest in substantial amounts of property. During the course of the marriage they adopted two children, who at the time of the initiation of this action, were both in their teens and attended Phoenix public schools. Plaintiff and defendant were remarried on June 14, 1958 and they lived together with their children in the family residence until June 1962.

On June 26, 1962, plaintiff filed a complaint in which she prayed, among other things, that a decree of divorce be granted and that an order to show cause issue requiring defendant to appear and show cause why he should not be required to pay plaintiff pendente lite a reasonable sum for the support and maintenance of herself and the minor children of the marriage, and for attorneys fees. An order was so issued and the hearing held commencing November 19, 1962.

It was adduced at the hearing that for the year 1961 defendant had a taxable income of $5,351.41. During the first nine months of 1962, his net income from the practice of medicine was approximately $4,196.23. In addition, he received $62,000 from the sale of real property and $6,800 as a dividend on stock. On the date of the order to show cause hearing defendant held a property interest in sixty-eight shares of stock of Arizona Downs, forty acres of desert land, jewelry of a value not exceeding $7,000, a loan to a son of $5,890, a new Chrysler New Yorker automobile, a balance of approximately $10,000 in a bank account and his joint interest in the family residence valued at approximately $75,000 with a present mortgage of approximately $15,000.

Prior to June of 1962, defendant regularly paid, among other expenses, the house payments, the utility bills, the grocery and milk bills, ordinary clothes for the children, automobile expenses, country club membership school expenses for the children and the salary of a maid. Even though these monthly expenses averaged in excess of $1800 per month, defendant contributed only $200 toward their payment from June 1962 until the date of the hearing to show cause. At that time the house payments were three months in arrears and foreclosure was imminent.

During the corresponding period--the first nine months of 1962--plaintiff received income amounting to approximately $14,000. At the time of the hearing she was possessed of substantial property, both real and personal, valued approximately between $150,000 to $200,000. Her health was such that she was unable to work.

Upon conclusion of the evidence, the trial judge made a partial temporary ruling. Thereafter briefs were filed, and on December 21, 1962, he approved a formal written copy of his order regarding utilities, etc., as follows:

'The court having heard the testimony and examined the exhibits and having heard the argument of counsel, and having taken this matter under advisement and after due consideration in the premises and good cause appearing therefore, the court makes the following partial temporary ruling in regard to the order to show cause heard by this court:

'IT IS ORDERED that the defendant, John H. Patterson, pay to the plaintiff through the Clerk of this court the sum of $559.75 per month and plaintiff is directed to use said sum for the following purposes:

'1. $175.00 per month for the food of plaintiff and the minor children of the parties.

'2. $140.00 per month as and for the wages of the maid.

'3. $150.00 per month for the payment of utilities which shall include gas, electricity, water, lights, power, telephone and irrigation.

'4. $94.75 as and for the mortgage payment on the residence of the parties.

'The first of said payments of $559.75 shall be paid by the defendant to the plaintiff through the Clerk of this court on or before the 24th day of December, 1962, and a payment in like amount shall be made on or before the 15th day of every month thereafter until further order of this court.'

On February 25, 1963, the trial judge issued an opinion and pendente lite order in addition to that of December 21, 1962.

'ORDER that the defendant pay as and for the support, maintenance and education of the two minor children of the parties the sum of Six Hundred ($600) Dollars per month, and same shall be paid to the plaintiff through the office of the Clerk of the Court--first payment shall be so made on the 4th day of March, 1963, and payments in like amounts shall be made on or before the 4th day of each and every month thereafter until further order of the Court.

'ORDER that the Plaintiff shall keep and present to this Court, when so requested by the Court, a detailed account of the expenditures made by plaintiff for the support, maintenance, and education of the two minor children of the parties.

'ORDER that the defendant shall pay through the Clerk's Office, as and for alimony for the plaintiff, the sum of One Dollar ($1.00) per month.

'IT IS FURTHER ORDERED that the defendant shall, forthwith, pay through the Clerk's office, one-half of all payments necessary to reinstate the loan on the residence of the parties, and if the said loan was not reinstated in accordance with the letter of A. B. Robbs Trust Company under date of January 3, 1963 and addressed to the plaintiff, the defendant is ordered to likewise pay, forthwith, through the said Clerk's office, one-half of all sums paid by plaintiff to satisfy said loan.'

No appeal was taken from either of these orders. For a period of three months beginning with December 1962, defendant made monthly payments of $559.75. A payment of $1,487.21 was made in March 1963, and thereafter, until February 1964, he made monthly payments of $748.50.

On March 14, 1964, defendant died and an executor was appointed for his estate. Plaintiff petitioned the court for an order determining and fixing the arrearage of alimony and support payments due and owing from defendant's estate. Oral arguments were had and on July 1, 1964 the trial judge found that the order of February 25, 1963 did not supersede the order of December 21, 1962 and fixed the arrearage in the amount of $5,695.50. Appeal was taken from this order.

Defendant assigns as error the court's finding that the order of February 25, 1963, directing the defendant to pay $600 per month to the plaintiff for the support and maintenance of the parties' two minor children did not supersede the temporary order of December 21, 1964 which directed the defendant to pay $559.75 per month for the support and maintenance of the two minor children. It...