Roberts v. Roberts.

• Decision Date: 31 October 1931
• Docket Number: No. 3609.,3609.
• Citation: 35 N.M. 593,4 P.2d 920
• Parties: ROBERTSv.ROBERTS.
• Court: New Mexico Supreme Court

35 N.M. 593

4 P.2d 920

ROBERTS

v.ROBERTS.

No. 3609.

Supreme Court of New Mexico.

Oct. 31, 1931.Rehearing Denied Nov. 23, 1931.

Syllabus by the Court.

General conclusion on mixed question of fact and law cannot be reviewed without specific exceptions or requested specific findings.

Refusal to make certain finding on conflicting evidence will be sustained.

Property acquired by husband during marriage presumptively belongs to community, and presumption is rebuttable by preponderance of evidence (Comp. St. 1929, §§ 68-302, 68-303, 68-401).

Property acquired by husband during marriage in exchange for his separate property does not belong to community (Comp. St. 1929, §§ 68-302, 68-303, 68-401).

Evidence held insufficient to overcome presumption that property acquired by husband during marriage belonged to community on theory it was acquired in exchange for husband's separate property (Comp. St. 1929, §§ 68-302, 68-303, 68-401).

General conclusion on mixed question of fact and law cannot be reviewed, in absence of specific exceptions or requested specific findings.

Where evidence conflicts, refusal to make finding will be sustained.

Property acquired by husband during marriage belongs presumptively to the community. The presumption is rebuttable by preponderance of evidence.

Property acquired by husband during marriage in exchange for his separate property does not belong to community.

Evidence examined, and held not sufficient to overcome presumption that property acquired by husband during marriage belonged to community on theory that it was acquired in exchange for husband's separate property.

Appeal from District Court, Lincoln County; Frenger, Judge.

Action for divorce by Nannie J. Roberts against George W. Roberts, in which defendant filed cross-complaint. From an adverse judgment, defendant appeals.

Affirmed and remanded, with directions.

Evidence examined, and held not sufficient to overcome presumption that property acquired by husband during marriage belonged to community on theory that it was acquired in exchange for husband's separate property.

H. B. Hamilton, of El Paso, Tex., for appellant.

George W. Prichard, of Santa Fé, for appellee.

WATSON, J.

This cause is before us on the appeal of the husband from a judgment by which the wife, as plaintiff, was granted a divorce, the husband, as cross-plaintiff, was denied a divorce, and division of property was made as belonging to the community.

[1] Appellant here contends that the court erred both in awarding the divorce to the wife and in denying it to him. These questions cannot be considered. As to the right to divorce, there were no specific findings, no specific exceptions were taken to the general findings or conclusions, and no findings at all were requested. Harris & Maldonado v. Sperry, 35 N. M. -, 290 P. 1022; De Lost v. Phelps Dodge Corporation, 33 N. M. 15, 261 P. 811.

Appellant also contends that the court erred in holding certain property to belong to the community, and in dividing it accordingly. The property so divided was a town lot in Corona, with a store building; a tract of 640 acres; an automobile; a bank deposit as of date of separation of parties; a $600 loan to one Imhoff; a $500 loan to one Roberts.

[3] The parties were married May 29, 1925, and separated June 15, 1929. All of the enumerated assets were acquired during the marriage. The presumption is that they were community assets, though such presumption may be overcome by a preponderance of evidence. In re Faulkner's Estate, 35 N. M. -, 290 P. 801.

[4] None of the property involved was acquired by the appellant by gift, bequest, devise, or descent. So, under the letter of our statute, it would be community property. 1929 Comp. §§ 68-302, 68-303, 68-401.

“But the courts wisely ingrafted upon the doctrine the principle that where property is acquired during marriage by the sale or exchange of separate property, it remains separate property.” Morris v. Waring, 22 N. M. 179, 159 P. 1002, 1004. Appellant seeks to bring these several assets within this principle.

As to the store building and lot, appellant claims that, prior to the marriage, he had entered into an executory contract for its purchase, and had paid $200 of the price; completing payment after marriage in monthly installments of $100 each. He urges the legal proposition that the character of the property is to be determined as of the time of its acquisition, and that the acquisition of the legal title after marriage relates back to the acquisition of the conditional right before marriage, even though the installments...