Reich v. Reich

• Decision Date: 25 September 1970
• Docket Number: CA-CIV,No. 2,2
• Citation: 13 Ariz.App. 98,474 P.2d 457
• Parties: Ruth REICH, Appellant, v. Everett C. REICH, Appellee. 801.
• Court: Arizona Court of Appeals

Page 457

474 P.2d 457

13 Ariz.App. 98

Ruth REICH, Appellant, v. Everett C. REICH, Appellee.

No. 2 CA-CIV 801.

Court of Appeals of Arizona, Division 2.

Sept. 25, 1970.

Rehearing Denied Oct. 15, 1970.

Review Denied Dec. 1, 1970.

Russo, Cox & Dickerson, P.C., by Russell Russo, Tucson, for appellant.

Waterfall, Economidis, Falk & Caldwell, by Peter Economidis, Tucson, for appellee.

HOWARD, Chief Judge.

In this appeal the plaintiff, Ruth Reich, questions the authority of the court to dispose of property held by herself and the defendant-husband in joint tenancy with the right of survivorship. She also questions the court's denial of alimony, court costs and attorney's fees.

In the divorce proceedings before the trial court the plaintiff introduced into evidence a deed showing the land in question as being held in joint tenancy with the right of survivorship. The deed was dated prior to the 1962 amendment of A.R.S. § 25--318 which permits the court to dispose of such property in a divorce action. Property acquired prior to the amendment is not affected. Headley v. Headley, 101 Ariz. 331, 419 P.2d 510 (1966). Plaintiff contends that the introduction of the deed in evidence was merely for information purposes and it was never her intention to have the court dispose of this property. The record belies this contention. In her pleadings she sets forth that the property is owned by herself and her husband; her affidavit in support of an order to show cause refers to the property as being community and in her deposition admitted into evidence she maintained the property to be community. At the trial she testified that she could live in the house on the property and the husband could still run the business located thereon. At the trial an appraisal witness testified in her behalf as to the value of the property. At the trial the defendant treated the property as community. The position of the trial court at the motion for a new trial illuminates the record; as found in appellee's brief at page nine:

"THE COURT: Gentlemen, so there is no misunderstanding, it's my understanding throughout this case, the case was tried to me on the theory that all property was to be divided by the Court, mainly--of course, it was evidenced to all parties it was a very tense situation and to avoid any sort of partitioning of this Benson Highway property, I was under the understanding that this was all submitted to me for division. Otherwise, I couldn't see any sense in having all the appraisers put on, having all the testimony whether or not the house could be split separate from the car lot, all that testimony, in fact, the entire case as I understood it was tried to me on the theory that this was all to be divided, that it was community property with the exception of those certain items that were pointed out and argued as separate property. Certainly that was the theory on which the Court went and that was the theory of my judgment in this case, but I'll certainly read your case as submitted.

'This is...