Porter v. Porter, 7594

• Citation: 101 Ariz. 131,416 P.2d 564
• Decision Date: 14 July 1966
• Docket Number: No. 7594,7594
• Parties: , 34 A.L.R.3d 933 Pearline PORTER, Pauline P. Leonard and George C. Kemble, Appellants, v. Gladys E. PORTER, Appellee. PR.
• Court: Supreme Court of Arizona

Page 564

416 P.2d 564

101 Ariz. 131, 34 A.L.R.3d 933

Pearline PORTER, Pauline P. Leonard and George C. Kemble, Appellants, v. Gladys E. PORTER, Appellee.

No. 7594 PR.

Supreme Court of Arizona, In Banc.

July 14, 1966.

Beer & Polley, Phoenix, for appellants Pearline Porter and Pauline P. leonard.

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

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

BERNSTEIN, Vice Chief Justice.

Pursuant to 17 A.R.S. Rule 47(b), Rules of the Supreme 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 P.2d 28; Porter v. Stanford, 86 Ariz. 402, 347 P.2d 35, cert. den. 371 U.S. 829, 83 S.Ct. 23, 9 L.Ed.2d 66 and Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155. We will merely highlight the pertinent facts. On May 14, 1959 Gladys E. Porter, appellee, obtained an Arizona judgment for separate maintenance after constructive service upon her husband Arnold Porter by publication and registered mail which he acknowledged. She had attached the Arizona Hotel in Phoenix when she filed her complaint which described the hotel as community property. The judgment imposed a lien on the hotel in excess of $25,000 for support payments of $3,000 monthly which were later reduced to $1,000 per month. On July 21, 1959 the trial court entered a judgment determining the arrearage due under the separate maintenance judgment and three days later Gladys obtained execution and levied upon the hotel to satisfy an amount over $31,500. The July 21, 1959 judgment was a final judgment. McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196. The sheriff's sale was held August 20th and all of Mr. Porter's interest in the hotel was sold to Gladys who received a sheriff's deed April 7, 1960. As a result of the sale and upon receipt of this deed, Gladys became the sole owner of any interest in the hotel which she and Arnold had theretofore held as community property as well as any interest which Arnold held as his separate property. A.R.S. § 25--342, subsec. B.

Eleven days after the Arizona separate maintenance judgment was entered, Arnold Porter sued Gladys for divorce in Idaho. She answered seeking full faith and credit for the Arizona judgment and participated in the Idaho divorce proceedings. On December 28, 1960 nearly seventeen months after Gladys bought Arnold's interest in the Arizona Hotel at the sheriff's sale and nine months after she obtained the deed thereto, the Idaho court refused to give the Arizona judgment full faith and credit. Furthermore, that court found that the Arizona Hotel was owned by a partnership in which Gladys and Arnold had an interest as community property. Arnold Porter was awarded all community property interest in the partnership which owned the hotel and Gladys was given ten days to 'execute and deliver unto (Arnold Porter) a transfer and conveyance of all right, title, interest and equity * * * that the defendant (Gladys) has in those properties known as the Arizona Hotel * * *.' Pursuant to the court's command, Gladys executed quitclaim deeds and assignments of her interest in the hotel.

This appeal arises out of appellants' intervention in Gladys' separate maintenance action wherein appellants alleged that the Arizona Hotel was owned by a partnership in which they together with Arnold Porter had an interest. After the Idaho judgment was rendered, appellants filed supplemental complaints in intervention seeking full faith and credit for the Idaho court's judgment that the hotel was owned by a partnership and that Gladys had no further interest in the Arizona Hotel by virtue of the quitclaim deed, assignment and release of the Arizona judgment. U.S.Const. Art. IV, § 1; 28 U.S.C.A. § 1738. Trial was had on December 18, 1961 in the Superior Court of Maricopa County. Documentary evidence was introduced but there was no testimony. The trial court granted a directed verdict for Gladys and this appeal followed.

Certain facts must be emphasized to properly frame the problem before us. In Porter v. Stanford, supra, this court said:

'* * * It (the trial court) had jurisdiction of the parties (Gladys and Arnold) and of the subject matter of the litigation and jurisdiction to enter an order in such amount as it deemed proper for (Gladys and the children) support pendente lite.'

'* * * It also had authority not only to order the husband to pay such amount pendente lite but it also had authority to direct a receiver of the community property to do so.'

'* * * The presumption that it is community property (the Arizona Hotel) therefore obtains and will continue to prevail in favor of Gladys E. Porter until it is destroyed by evidence to the contrary.' 86 Ariz. 406--407, 347 P.2d 40.

Arnold Porter has never attempted to introduce evidence rebutting the presumption. There is a presumption that real property owned by husband and wife is community property and nearly conclusive evidence is required to overcome the presumption which alone will support a judgment. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966.

Payments for separate maintenance become vested when they become due and cannot be modified thereafter. McClanahan v. Hawkins, supra. A judgment based upon such payments is entitled to full faith and credit. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905.

No authority need be cited to support the validity of a separate maintenance judgment where a resident spouse attaches property in Arizona and serves the nonresident spouse by registered mail as provided in Rule 4(e), 16 A.R.S. Porter v. Duke, 34 Ariz. 217, 270 P. 625. The court has jurisdiction to determine the rights of the nonresident spouse in the attached property. 24 Am.Jur.2d Divorce and Separation, §§ 546, 935, 995. We have recognized the validity of a separate maintenance suit which based jurisdiction over a nonresident spouse upon the fact that community real property was attached in the state. White v. White, 83 Ariz. 305, 320 P.2d 702. Moreover, we have recognized that a lien in favor of the wife may attach to the husband's share of community owned partnership property. Spector v. Spector, 94 Ariz. 175, 382 P.2d 659. In this regard, we note that partnership assets acquired during coverture are community property and belong to both spouses. Coe v. Winchester, 43 Ariz. 500, 33 P.2d 286. The sheriff may sell the attached property, whether separate or community, to satisfy a judgment for past due support payments and the non-resident spouse is bound by the sheriff's sale to the extent of his interest in the property. Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713.

The above principles will be referred to as we analyze the problem before us. Stated most simply, the issue is whether the trial court erred in directing a verdict for Gladys based on the conclusion that appellants failed to prove the Arizona Hotel was owned by a partnership. Apart from the documentary evidence which we shall consider subsequently, appellants relied primarily upon the Idaho judgment. Hence, we must decide whether the Idaho judgment is entitled to full faith and credit. We think not. We note that appellants do not ask us to merely give full faith and credit to the Idaho judgment. Instead, we are asked to give it greater credit than the prior Arizona judgments. We do not think the full faith and credit clause requires such a conclusion.

In the first place, the Idaho court was obliged to give full faith and credit to the Arizona separate maintenance judgment and to the later judgment based upon the arrearage for support payments. Pursuant to these judgments, Gladys obtained all of Arnold's interest in the hotel which thereafter was her separate property. We pointed out above that as between Gladys and Arnold, there was adjudication that she owned his interest in the hotel and there was no community property interest in the hotel. That adjudication was entitled to full faith and credit in the Idaho trial court. American Exp. Co. v. Mullins, 212 U.S. 311, 29 S.Ct. 381, 53 L.Ed. 525. The Idaho Supreme Court recognized that its trial court may have erred in refusing to grant full faith and credit to the Arizona judgments. Gladys appealed that part of the divorce decree which prohibited her from maintaining, instituting or prosecuting any action affecting the Arizona Hotel and the Idaho Supreme Court said the judgment was too broad because:

'* * * This enjoinder will prevent appellant from exercising any rights which she may have Outside the present action and to all rights which may enure to her in the future by virtue of this decree or Otherwise.' Porter v. Porter, 84 Idaho 400, 373 P.2d 327, 332. (Emphasis supplied)

The Idaho judgment is fatally defective because it failed to give the prior valid Arizona judgments full faith and credit and, therefore, is not entitled to full faith and credit by this court. Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. 464; Dixon v. Dixon, 76 N.J.Eq. 364, 74 A. 995; Hanna v. Stedman, 230 N.Y. 326, 130 N.E. 566.

Secondly, the Idaho judgment is not entitled to full faith and credit because the Idaho court had no jurisdiction, power or authority in the divorce proceeding to enter an order distributing property which was Gladys' separate property and not community property. At the sheriff's sale, Gladys acquired all of Arnold's interest in the Arizona Hotel and it follows that the hotel was not community property thereafter. Idaho is a community property state and the court 'divides' the community property only when it grants a divorce. Idaho Code § 32--712. The Supreme Court of Idaho has said that:

'* * * The court has the power under said section (32--71...