Porter v. Porter

Citation1 Ariz.App. 363,403 P.2d 298
Decision Date21 June 1965
Docket NumberCA-CIV
PartiesPearline PORTER and Pauline P. Leonard, Appellants, George C. Kemble, Appellant, v. Gladys E. PORTER, Appellee. * 127.
CourtCourt of Appeals of Arizona

Beer & Polley, by Wesley E. Polley, Phoenix, for appellants Pearline Porter and Pauline P. Leonard.

Kramer, Roche, Burch & Streich, by Charles L. Hardy, Phoenix, for appellant George C. Kemble.

W. Francis Wilson and Richard A. Wilson, Phoenix, for appellee Gladys E. Porter.

CAMERON, Judge.

This is an appeal by Pearline Porter and Pauline P. Leonard, appellants herein, intervenors below, and George Kemble, appellant herein, intervenor below, from a decision of the lower court in favor of Gladys E. Porter. Pearline Porter and Pauline P. Leonard are the twin sisters of Arnold Porter and will be referred to as the Porter sisters. The intervenor, George C. Kemble, will be referred to as Kemble. The facts so far as they are necessary for a determination of this appeal are as follows:

Gladys Porter and Arnold Porter were married in 1940, in Detroit, Michigan, and there are four children, the issue of said marriage. In 1943, Gladys Porter and Arnold Porter and the Porter sisters entered into a partnership agreement concerning the operation of the hotels owned by the parties. In August of that year, a warranty deed conveying property in Phoenix, Arizona, described as the Arizona Hotel, was recorded in Maricopa County. The deed conveyed title to Arnold and Gladys Porter, husband and wife. The deed did not mention any interest of the Porter sisters.

At this time and thereafter, the marital home of Arnold and Gladys Porter was in Idaho. In December of 1958, Gladys Porter left Idaho to visit in California, and a few weeks later came to Phoenix. In February of 1959, Gladys Porter filed a complaint for separate maintenance in Maricopa County alleging that Arnold Porter was a resident of Idaho and that she was now a resident of Arizona. The complaint also alleged that the property described as the Arizona Hotel was community property. An attachment was issued which was levied upon the Arizona Hotel. The Porter sisters then intervened in the said action, claiming that the Arizona Hotel property was not community property, but that it was partnership property, and that they, the Porter sisters, owned a one-sixth interest each, or a total of one-third, in and to the property described as the Arizona Hotel. The wife petitioned for the appointment of a receiver, and also filed a counterclaim against the Porter sisters as intervenors, denying their allegation, and claiming again that the property was community. A receiver was appointed to run the hotel and later, on 14 May, 1959, a decree of separate maintenance in favor of Gladys Porter, the wife, against Arnold Porter was granted. Arnold Porter, the husband, had not been personally served in Arizona and did not appear in the action.

Thereafter, the intervenor, Kemble, filed a complaint in Cochise County for and on behalf of the Porter children, and against the husband and father, Arnold Porter. Judgment was entered against Arnold Porter in the amount of $135,575.23, on the same day the complaint was filed, 25 May, 1959. Also on the same day, an order was issued out of the Cochise County court charging the judgment against the Arizona property as a partnership. Gladys Porter was not a party to the action in Cochise County.

Also on 25 May, 1959, Arnold Porter filed a complaint for divorce against the wife, Gladys Porter, in the District Court of the State of Idaho, 18th Judicial District, County Kootenai. Back in Arizona, the Maricopa County Superior Court ordered that the receiver of the Arizona Hotel property pay to the wife, Gladys Porter, the amount of $1,000 per month for support of herself and the minor children until the issue of the ownership could be determined. The Porter sisters and Kemble immediately petitioned the Supreme Court of Arizona for writs of prohibition enjoining the Superior Court from enforcing this order. The alternative writs of prohibition were quashed in the case of Kemble v. Stanford, 86 Ariz. 392, 347 P.2d 28 (1959), and Porter v. Stanford, 86 Ariz. 402, 347 P.2d 35 (1959). As a result of the opinion in the case of Kemble v. Stanford, op. cit., Kemble moved to intervene in the Maricopa County Superior Court case, and the motion was granted. Certiorari to the U. S. Supreme Court was denied in the case of Porter v. Stanford, 371 U.S. 829, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962).

While this matter was being determined by the Arizona Supreme Court, a writ of execution was issued in August, 1959, and at the resulting sheriff's sale, Gladys Porter purchased the interest of Arnold Porter in and to the Arizona Hotel property. In January and February of 1960, the Porter sisters and Kemble moved to vacate and set aside the execution sale, which was denied. The sheriff's deed conveying the Arizona Hotel property was given to Gladys Porter, and in April of 1960, Kemble moved to set aside the sheriff's deed. This motion was also denied and he appealed to the Arizona Supreme Court. The Arizona Supreme Court held in the case of Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155 (1960) that the order denying the motion to set aside the execution sale was not an appealable order and therefore dismissed the appeal. The scene now shifts back to the State of Idaho where the wife, in July of 1959, had filed an answer and counterclaim in the Idaho divorce action. The Porter sisters also intervened in the Idaho divorce action. Unlike the action in the Maricopa County Superior Court or the Cochise County Superior Court, the Idaho case found all of the parties to this action, including the husband, appearing and litigating the issues. On 28 December, 1960, after trial in the action, the findings of fact and conclusions of law of the Idaho divorce decree and the decree of divorce, were entered. The decree granted the divorce to Gladys Porter and divided the community property. Gladys Porter was required and did execute quit claim deeds, assignments and releases, of the Arizona Hotel property in Arizona. This portion of the decree in Idaho was appealed by Gladys Porter. The Idaho Supreme Court upheld the Idaho divorce decree in the case of Porter v. Porter, 84 Idaho 400, 373 P.2d 327 (1962).

In Arizona, Kemble and the Porter sisters filed a supplemental complaint in intervention, praying that the court give full faith and credit to the Idaho divorce decree. Pre-trial was held the 11th day of December, 1961, before the Honorable E. R. Thurman, and the pre-trial order contained the following notation:

"'2' Exemplified copy of

Findings of Fact,

Conclusions of Law

in Idaho Case No.

18556-A Admitted in Evidence

"'3' Exemplified copy of

Judgment and Decree--

Idaho Case No. 18566-A Admitted in Evidence"

Trial before a jury commenced on 18 December, 1961; the only evidence presented was documentary evidence and no one testified. At the trial, exhibits '2' and '3' being exemplified copies of the findings of fact and conclusions of law and the judgment in the Idaho case were offered in evidence. The attorney for Mrs. Gladys Porter objected to the introduction of exhibits '2' and '3' and the transcript reflects a discussion concerning whether or not the exhibits had been admitted in evidence at the pretrial conference. The trial court sustained the objection to the admission of exhibits '2' and '3'. The trial court did admit into evidence deeds signed by Gladys Porter conveying her interest in the Arizona Hotel property to Arnold Porter and the Porter sisters, as well as a release of judgment by which Gladys Porter released the decree of separate maintenance entered in the Maricopa County Superior Court on 14 May, 1959. Kemble and the Porter sisters rested, and Gladys E. Porter moved for a directed verdict which was granted by the court. The formal judgment was entered which provided:

'Wherefore, it is Ordered and Adjudged that plaintiffs in intervention George C. Kemble, Pauline Leonard and Pearline Porter take nothing by their actions and that defendant, Gladys E. Porter, have judgment against the plaintiffs in intervention and each of them for her costs incurred and expended herein, and that defendant have execution therefor against the property of the plaintiffs in intervention in each of them.'

Motion for new trial was filed and denied, and the Porter sisters and Kemble bring this appeal. The receiver heretofore appointed in the separate maintenance action is still in possession of the Arizona Hotel property. The basic question before this court is this: When real property is located in Arizona and in the possession of the Arizona Superior Court through a receiver, may the Arizona Superior Court refuse to give full faith and credit to a judgment of a court of general jurisdiction of a sister state (Idaho) adjudicating claims to the title of such property when all the parties claiming an interest in the Arizona submitted were before the Idaho court and submitted to the jurisdiction of the Idaho court.

Article 4, Section 1 of the Constitution of the United States reads as follows:

'Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.'

Congress has enacted such legislation prescribing the manner in which these records may be proved and the legislation reads in part as follows:

'The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a...

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4 cases
  • Porter v. Porter
    • United States
    • Arizona Supreme Court
    • July 14, 1966
    ...Court and A.R.S. § 12--120.24, we granted a petition to review the decision of the Court of Appeals, Division 1, reported in 1 Ariz.App. 363, 403 P.2d 298. The history of this protracted litigation is detailed in the Court of Appeals decision as well as Kemble v. Stanford, 86 Ariz. 392, 347......
  • Porter v. Wilson, 22516.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 6, 1970
    ...full faith and credit to the Idaho judgment adjudicating the in personam rights of the parties in the Arizona Hotel. Porter v. Porter, 1 Ariz.App. 363, 403 P.2d 298 (1965). On July 14, 1966, however, the Arizona Supreme Court reversed the Arizona Court of Appeals. The Arizona Supreme Court ......
  • Wilson, In re
    • United States
    • Arizona Supreme Court
    • June 9, 1970
    ...that it was in trust. The litigation on the Porter matter was long and involved, the history of which may be found in Porter v. Porter, 1 Ariz.App. 363, 403 P.2d 298, vacated, 101 Ariz. 131, 416 P.2d 564; Kemble v. Stanford, 86 Ariz. 392, 347 P.2d 28; Porter v. Stanford, 86 Ariz. 402, 347 P......
  • Emblen v. Southern Adjustment Bureau, Inc.
    • United States
    • Arizona Court of Appeals
    • June 21, 1965

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