Provinzano v. Provinzano

• Citation: 570 P.2d 513,116 Ariz. 571
• Decision Date: 30 August 1977
• Docket Number: No. 1,CA-CIV,1
• Parties: June Mary PROVINZANO, Appellant, v. Anthony A. PROVINZANO, Appellee. 3244.
• Court: Court of Appeals of Arizona

Page 513

570 P.2d 513

116 Ariz. 571

June Mary PROVINZANO, Appellant, v. Anthony A. PROVINZANO, Appellee.

No. 1 CA-CIV 3244.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 30, 1977.

Rehearing Denied Sept. 29, 1977.

Review Denied Oct. 25, 1977.

Meyer & Vucichevich by Henry G. Hester and P. Richard Meyer, Phoenix, for appellant.

Flynn, Kimerer, Thinnes & Derrick by Clark L. Derrick and John J. Flynn, Phoenix, for appellee.

OPINION

HAIRE, Judge.

On this appeal the contentions raised by the appellant-wife concern the orders entered by the trial court relating to the disposition of the community property of the parties, and to spousal maintenance and child support. When the decree of dissolution was entered the parties had been married for approximately 32 1/2 years.

The record reveals that at the time of the hearing in the trial court, the appellee-husband was 53 years of age, and, immediately prior to the hearing, had voluntarily retired for physical disability reasons after over 30 years of employment with the United States Post Office Department. The petition for dissolution alleged, and the answer admitted, that the Post Office Retirement plan involved was community property. None of the evidence submitted would have supported a finding that it was other than community property, having been earned as a result of the husband's employment during marriage with the Post Office Department. See generally, authorities cited, DeFUNIAK & VAUGHN, Principles of Community Property, 2d Ed. § 68.

The testimony was that the payment received as a result of the retirement from the post office employment was $807.95 per month. In addition, the husband also received a military service disability payment in the amount of $233.00 per month. This service-connected disability payment resulted from disabilities incurred by the husband in World War II, at a time when the parties were married.

At the time of the hearing, the wife was 52 years of age and worked as a sales clerk, with a gross income averaging approximately $400.00 per month. In disposing of the community assets, ¹ the trial court awarded to the husband the entire community interest in the above-mentioned retirement and disability benefits yielding a total monthly payment of $1,041; a life insurance policy having a cash surrender value of between $3500 and $3600; funds remaining from a savings account in the sum of $968; and miscellaneous unvalued a personal property including a 1968 Chrysler, a stamp and coin collection, and the husband's guns, tools, art supplies and books.

The appellant-wife was awarded her community interest in the residence of the parties having an approximate net value of $5,250 (value of the wife's one-half interest); ² miscellaneous household furniture; and a 1962 Nova automobile. In addition, the wife was awarded the husband's interest in the community residence "as a lump sum maintenance payment."

On this appeal the wife's major contention is that the trial judge abused his discretion and did not make an equitable distribution of the parties' community property. Appellant's contention in this regard relates primarily to the fact that the trial judge awarded the entire community interest in the retirement and disability payments to the husband. A secondary contention urged by the appellant concerns the trial judge's failure to make a child support award to her for a disabled adult daughter of the parties. Additional facts concerning this latter contention will be set forth later in this opinion in our discussion of that question.

Considering first appellant's contentions concerning the disposition of the community assets, it appears that, except for the retirement and disability payments, the disposition made by the trial court was approximately equal. ³ During the trial, counsel for the wife attempted to introduce expert testimony concerning the "present value" of the retirement plan. The trial judge rejected this testimony on foundational grounds because of lack of evidence concerning the life expectancy of the husband. The Court was then requested to take judicial notice of the mortality tables appended to the Arizona Revised Statutes. The Court refused to do so, apparently upon the basis that there was actual evidence before the Court showing that the husband was ill and disabled and therefore the average life expectancies set forth in standard mortality tables would not be pertinent. This ruling was clearly erroneous. See Udall, Arizona Law of Evidence, § 121; 32 C.J.S. Evidence §§ 719, 770; Rodgers v. Bryan, 82 Ariz. 143, 309 P.2d 773 (1957); S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29 P.2d 151 (1934). However, because of the borderline materiality of the "present value" of the retirement benefits under the overall facts of this case, the rejection of this "present value" evidence was not of great importance. Here, the right to receive the retirement and disability benefits had already vested and the monthly payments were actually being received by the husband. If the evidence had shown substantial other community assets so that an award of these retirement and disability benefits to the husband could have been off-set by a corresponding award of other community assets to the wife, then present value evidence would have been important so as to afford a basis for computing off-setting valuations. However, such was not the situation here. Under the facts of this case, no off-setting dispositions could be made, and the only practical way of making an equitable disposition would be to give the wife a present percentage interest (or a specific amount) in the future monthly payments. Cf. Van Loan v. Van Loan, 115 Ariz. 322, 569 P.2d 214 (Arizona Supreme Court No. 13129-PR, filed July 22, 1977). We therefore proceed to a consideration of the basic question of whether the trial judge abused his discretion in awarding this community asset entirely to the husband.

A.R.S. § 25-318 directs that in a marriage dissolution proceeding the trial judge shall "divide the community, joint tenancy, and other property held in common equitably, though not necessarily in kind." As we stated in Lindsay v. Lindsay, 115 Ariz. (App.) 322, 565 P.2d 199 (1977):

"While the trial court in a dissolution proceeding is not required to divide the community property exactly equally, Kamrath v. Kamrath, 17 Ariz.App. 394, 498 P.2d 468 (1972) and has wide discretion, it cannot without reason create a gross disparity, or make its award arbitrarily. Sound discretion has been held to mean that, in the absence of sound reasons appearing in the record which justify a contrary result, the...