Rodieck v. Rodieck

Decision Date13 February 1969
Docket NumberCA-CIV,No. 2,2
PartiesMary Toos RODIECK, Appellant, v. George Edward RODIECK, Appellee. 550.
CourtArizona Court of Appeals

Sullivan, Alley & Seefeldt, by John P. Sullivan, Tucson, for appellant.

Clampitt, Videen & Berlat, by William L. Berlat, Tucson, for appellee.

HATHAWAY, Judge.

This is an appeal from a decree of separation from bed and board, A.R.S. § 25--331, raising questions concerning the characterization of the parties' property as separate or community property and the division of that property as provided in the decree. We have raised, sua sponte, however, a question of jurisdiction which we feel is dispositive of the case. Does a superior court, under the law of this state have jurisdiction to dissolve the community in an action for separation from bed and board?

This question has apparently never been raised before in the appellate courts of this state. Therefore, a brief look into the history of this type of action is helpful to a better understanding of the problem.

In Arizona, a dissatisfied wife, such as Mrs. Rodieck in the instant case, has three alternatives to choose from if she wishes to compel support from her husband while living away from him, (1) she may file for separate maintenance, under A.R.S. § 25--341 et seq., or (2) she may file for separation from bed and board, under A.R.S. § 25--331 et seq., or (3) she may ask for a divorce under A.R.S. § 25--311 et seq. Mrs. Rodieck elected to seek separation from bed and board. Our Supreme Court has distinguished 'separate maintenance' and 'separation from bed and board' in Williams v. Williams, 33 Ariz. 367, 265 P.2d 87, 61 A.L.R. 1264 (1928), where it explained that the latter term is the same as the common law divorce A mensa et thoro, 1 which was granted by the ecclesiastical courts of England. See also Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, 71 A.L.R. 700 (1930). It is also called 'limited divorce' and 'legal separation.' Although denominated a 'divorce,' at common law it was not a divorce action at all, since the marriage union was not dissolved. As stated in Williams:

'The status of the parties as married people remained the same, with the exception that the wife was freed from the obligation of living with her husband.' 265 P. at 88.

See also Darden v. Darden, 246 Ala. 525, 21 So.2d 549 (1945). Under the old common law of England, only Parliament could grant a divorce dissolving the bonds of matrimony. This legislative divorce was called divorce A vinculo matrimonii 2 and was the same as an absolute divorce under current terminology.

We look first to our statutes to determine whether authority exists to dissolve the community in this type of action. Even though equitable in nature, Schwartz v. Durham, 52 Ariz. 256, 80 P.2d 453 (1938), divorce actions are statutory, the courts having only those powers specifically conferred by statute. Van Ness v. Superior Court, 69 Ariz. 362, 213 P.2d 899 (1950). See also Valley Drive-In Theatre Corp. v. Superior Court, 79 Ariz. 396, 291 P.2d 213 (1955); Cloeter v. Superior Court, 86 Ariz. 400, 347 P.2d 33 (1959).

A.R.S. § 25--333, governing actions for separation from bed and board, provides:

'A. The proceedings shall be commenced and conducted as actions for absolute divorce, and the court may award such sum for attorney's fees and alimony during pendency of the action as the circumstances and situation of the parties warrant.

'B. The court may make and enter such judgment for support of the wife and her children by the husband, Or out of his property or earnings, as is just and proper, and May grant such further judgment as the nature and circumstances of the case require, whether a decree for separation is granted or not.

'C. On joint application of the parties and proof of their reconciliation, the court which granted the judgment of separation may revoke it under such regulations and restrictions as the court prescribes.' (Emphasis added)

Subsection A, providing that the 'proceedings (in an action for separation from bed and board) shall be commenced and conducted as actions for absolute divorce,' was obviously not designed to carry substantive powers from the statutes governing absolute divorce into those on separation from bed and board. Authorization for dissolution of the community, contained in A.R.S. § 25--318, is given only in cases of absolute divorce. 3 We conclude that this sentence of Subsection A was intended to apply only to procedural aspects.

Subsection B is likewise devoid of any authorization to determine the property rights of the parties. The fact that the court may provide for alimony or child support by the husband, 'out of his property or earnings,' does not authorize complete adjudication of property rights, since alimony does not contemplate a property settlement. Norton v. Norton, 101 Ariz. 444, 420 P.2d 578 (1966); Stone v. Stidham, 96 Ariz. 235, 393 P.2d 923 (1964); Lovegrove v. Lovegrove, 128 Va. 449, 104 S.E. 804 (1920); Reynolds v. Reynolds, 68 W.Va. 15, 69 S.E. 381 (1910); Tremper v. Tremper, 39 Cal.App. 62, 177 P. 868 (1918); 24 Am.Jur.2d Divorce & Separation § 610. The latter part of Subsection B, providing that the court 'may grant such further judgment as the nature and circumstances of the case require,' is an allowance of discretionary authority to insure that the support provisions will be enforceable. We think the legislature contemplated, by this language, liens on separate property of the husband, awards of property in lieu of alimony, injunctions against alienation of community property, custody of minor children and the like.

The foregoing construction of Subsection B is supported by the provision that this discretionary authority may be exercised 'whether a decree for separation is granted or not,' indicating that the court may grant a decree for separate maintenance even though a decree of separation from bed and board is denied. Surely the legislature did not intend to allow division of community property in a separate maintenance decree, since, in the absence of express statutory authority, 'separate maintenance' contemplates only 'alimony' and not property rights. Gillespie v. Gillespie, 74 Ariz. 1, 242 P.2d 837 (1952); McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318 (1927). The Supreme Court of Washington has held that, absent express statutory authority, courts cannot dissolve the community by a decree for separate maintenance. Cohn v. Cohn, 4 Wash.2d 322, 103 P.2d 366 (1940).

Of the eight jurisdictions which have community property law, only Louisiana and Arizona allow actions for separation from bed and board. In Louisiana, division of the community upon separation from bed and board is expressly provided for by statute. 1 L.S.A. Arts. 123, 136 and 155. California allows division of the community in a separate maintenance action, but again only by express statutory provision. Cal.Civ.Code § 147; See Johnson v. Johnson, 33 Cal.App. 93, 164 P. 421 (1917) for California law prior to this provision. New Mexico allows a separate action for division of community property 'WHENEVER THE HUSBAND AND WIFE SHALL HAVE PErmanently separated,' but again expressly by statute § 22--7--2 N.M.S.A., 1953; Poteet v. Poteet, 45 N.M. 214, 114 P.2d 91 (1941).

The remaining four community property states allow division of the community only upon absolute divorce. Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L.R.A. 60 4 (1904); N.R.S. § 125.150 (Nev.); Pelham v. Sanders, 290 S.W.2d 684 (Tex.Civ.App. 1956); Cohn v. Cohn, supra.

Our statute on separation from bed and board is a product of the common law, rather than the Spanish law, having been adopted from Minnesota in 1913. Williams v. Williams, supra; Arizona Civil Code 1913, § 3874, et seq. Analogous relationships in common law states--concerning joint tenancy, tenancy by the entirety, dower and curtesy, etc.--are sufficiently akin to the instant problem to be instructive. Since our statute came from Minnesota, we look first to constructions rendered by the high court of that state. The statute from which ours was taken was repealed in 1933, Bliss v. Bliss, 208 Minn. 84, 293 N.W. 94 (1940), and the cases prior to that time seem to be equivocal. On the one hand, the Minnesota court has said that, when separation from bed and board is decreed:

'The marriage relation is Merely suspended as to certain marital rights and relations, not annulled, And, save as they may be regulated by the terms of the decree, property interest remain undisturbed.' (Emphasis added) Evans v. Evans, 43 Minn. 31, 44 N.W. 524 (1890).

On the other hand, certain property rights have been determined and terminated by such a decree in Minnesota, but the source of the authority appears to have been an amendment to the statute in 1923. See Hoffmann v. Hoffmann, 174 Minn. 159, 218 N.W. 559, 561 (1928), construing Minn.Gen.St.1923, § 8613.

Other jurisdictions have allowed termination or division of property interests upon separation from bed and board where authorized by statute and in most instances have recognized that no such authority existed at common law. Nebraska: Shomaker v. Shomaker, 166 Neb. 164, 88 N.W.2d 221 (1958), but only insofar as necessary, Sanford v. Sanford, 173 Neb. 835, 115 N.W.2d 451 (1962). New Jersey: Lavino v. Lavino, 23 N.J. 635, 130 A.2d 369 (1957); Rudin v. Rudin, 104 N.J.Eq. 524, 146 A. 351 (1929). Virginia: Gum v. Gum, 122 Va. 32, 94 S.E. 177 (1917). Oregon: Kelley v. Kelley, 183 Ore. 169, 191 P.2d 656 (1948).

In Lavino, the New Jersey court stated that, at common law, divorce A mensa et thoro had no effect on property rights of the parties, citing Supreme Council American Legion of Honor v. Smith, 45 N.J.Eq. 466, 17 A. 770 (1889). In Rudin, the New Jersey court of Equity stated:

'A divorce from bed and board authorizes the parties to live in separation, yet leaves the marriage in full force, and unless provided by alimony decree or statute, it...

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