Rothman v. Rumbeck

• Court: Arizona Supreme Court
• Writing for the Court: ROSS, C.J.
• Citation: Rothman v. Rumbeck, 54 Ariz. 443, 96 P.2d 755 (Ariz. 1939)
• Decision Date: 11 December 1939
• Docket Number: Civil 4086
• Parties: DAISY MERYLN ROTHMAN, Appellant, v. ELIZABETH E. RUMBECK, as Administratrix of the Estate of DICK V. RUMBECK, Deceased, Appellee

96 P.2d 755

54 Ariz. 443

DAISY MERYLN ROTHMAN, Appellant, v. ELIZABETH E. RUMBECK, as Administratrix of the Estate of DICK V. RUMBECK, Deceased, Appellee

Civil No. 4086

Supreme Court of Arizona

December 11, 1939

APPEAL from an order granting a new trial of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded with directions.

Messrs Cunningham & Carson and Mr. Joseph T. Melczer, Jr., for Appellant.

Mr James E. Nelson, for Appellee.

OPINION

ROSS, C.J.

This is an appeal from an order granting a new trial.

The plaintiff Daisy Meryln Rothman and Dick V. Rumbeck were wife and husband from January 25, 1918, to January 22, 1932. On this last date he obtained a divorce from plaintiff on the ground of desertion and thereafter married the defendant Elizabeth E. Rumbeck, who was his wife when he died on July 8, 1937. On July 26, 1937, defendant was granted letters of administration of her deceased husband's estate.

On or about October 13, 1937, the plaintiff presented to the defendant administratrix a creditor's claim for allowance as follows: One-half of the premiums paid by the community during coverture on a life policy in the Northwestern Mutual Life Insurance Company, issued to the decedent prior to his marriage to plaintiff; and one-half of their community property (other than premiums on life policy) valued, at the time of the divorce on January 22, 1932, at approximately $3,000. In the creditor's claim it is alleged that there was no division of the community property in the divorce decree, and that there had not been any property settlement or agreement of any kind as to the community property. The claim was disallowed by the administratrix and thereafter this action was instituted to collect it. There were three items in the claim and three causes of action set out in the complaint but only the first and third are involved on this appeal.

Defendant's answer to the first cause of action was an admission that the premiums were paid by deceased as alleged in the complaint but it denied that Dick V. Rumbeck at the time of his death was indebted to plaintiff for a sum of money equal to one-half of the premiums paid on said policy or was indebted in any amount; alleged that Rumbeck had the right to change the beneficiary named in the said policy and after the divorce had changed the beneficiary from plaintiff to his estate, or his heirs, executors and administrators, and that said policy was so payable at the date of Rumbeck's death; that the said Rumbeck was granted a divorce from plaintiff on the ground of desertion and that the plaintiff made no appearance in the said divorce action and made no attempt to claim or recover any interest in said policy, and that, the beneficiary having been changed in 1932, plaintiff had no right to claim any interest whatever in said policy that defendant was the widow and only heir of said Rumbeck and entitled to all of the proceeds of the said policy.

Defendant's answer to the third cause of action was a denial, on information and belief, of the allegations of the complaint that there had been no division of the community property at the time of the divorce; a denial that there was any community property whatsoever at such time, and an affirmative allegation that all of the assets of the estate were community property of defendant and the deceased.

The case was tried by the court without a jury and plaintiff was given judgment for $215.45 on her first cause of action, being one-half of the premiums advanced on the Northwestern Mutual's policy; and $875 on her third cause of action as one-half of the other community property owned by the plaintiff and deceased at the time of the divorce.

The defendant thereafter filed her motion for a new trial, which was granted. The plaintiff appeals.

While in the motion other grounds or reasons are urged, the only one that would justify the order for a new trial is that the decree in the divorce case was res judicata of the property rights of the parties. The plaintiff contends the motion should not have been granted on this ground for the reason res judicata was not set up as a defense in defendant's answer. It is urged that if defendant desired to rely on estoppel by judgment she should have affirmatively pleaded it, and not having done so she waived the estoppel, if there be one.

An examination of the evidence shows that the record of the divorce case was introduced by the defendant, on the theory that there might be "a question of estoppel in the case," without any objection on the part of the plaintiff. The authorities are divided upon the question as to whether a party can claim res judicata when he has not pleaded it. Some of the decisions hold that he may not and others that he may introduce such defense under the general issue. 34 C.J. 1055, sec. 1491; 15 R.C.L. 1045, secs. 524, 525. Although the judgment in the divorce case was not pleaded in this action as an adjudication of the property rights of the parties, it was introduced without objection and we think the defect of pleading, if there was such, was waived. The issue of res judicata was tried and we will therefore examine the case on the sufficiency of the plea; that is, we are to determine whether what was adjudicated in the divorce case was res judicata of the property rights of the parties. In that case the complaint alleged that there was no community property. It prayed for a divorce and for general relief. The decree recited that the defendant (the present plaintiff) was duly and regularly served with summons and that she failed to appear or answer. The finding was that all of the allegations of the complaint were true. This was followed by an order dissolving the bonds of matrimony, but the decree said nothing about the property rights of the parties.

Under facts so far as material the same as here, the California court, in Brown v. Brown, 170 Cal. 1, 147 P. 1168, 1170, said:

"It is earnestly contended by the respondent that the final decree is of no force whatever upon the right of the plaintiff in the property of the husband. In this we think the plaintiff is mistaken. Where a defendant is served with a summons and complaint stating the facts upon which he is required to act, and he makes default, he is presumed to admit all the facts which are well pleaded in the complaint. The judgment which follows upon this sort of admission is, in contemplation of law, a complete adjudication of all the rights of the parties embraced in the prayer for relief and arising from the facts stated in the complaint, including the facts in his favor as well as those against him. The defendant here is presumed to have acceded to the proposition embraced in the complaint and to have consented that plaintiff should obtain the relief therein prayed for, upon the conditions and facts set forth in the complaint. The proceeding is equivalent to a statement by Brown to plaintiff that he did not object to a divorce for the cause alleged, based upon the theory that there was no community property existing at the time the action was begun. When judgment is rendered upon such a complaint and default, it becomes, in effect, a contract between the parties that the judgment shall be final with respect to everything properly embraced within the allegations of the complaint and in the prayer for relief. 1 Freeman on Judgments, §330; Hoh v. Hoh, 84 Wis. 378, 54 N.W. 731. Although the final decree is silent as to property, it nevertheless operates as an adjudication that at the time the action was begun there was no community property. Thompson v. McKay, 41 Cal. [221] 227; Champion v. Woods, 79 Cal. 17, 21 P. 534, 12 Am. St. Rep. 126." This case has been followed and approved by the following cases: Callnon v. Callnon, 7 Cal.App. (2d) 676, 46 P.2d 988; Lorraine v. Lorraine, 8 Cal.App. (2d) 687, 48 P.2d 48; Peters v. Peters, 16 Cal.App. (2d) 383, 60 P.2d 313.

If the law in this state was the same as California's, we would feel compelled to follow the above decisions. Section 146 of the Civil Code of California (Kerr's, part 1) provides that upon a dissolution of a marriage the community property shall be divided or assigned in the manner therein stated. The statute does not make any provision for community property not divided or assigned or disposed of by the court's decree in the divorce proceeding, leaving it to the courts to ascertain from the facts the character of any such undivided property. This is not so with our statute. The pertinent section reads as follows:

"Disposition of property; decree may be made lien on separate property. On entering a decree of divorce the court shall order such division of the property of the parties as to the court shall seem just and right, according to the rights of each party and their children, without compelling either party to divest himself or herself of the title to separate property. The court may, however, fix a lien upon the separate property of either to secure the payment of any interest or equity that the other party may have in or to such separate property, or any equity that may arise in favor of either party out of their property during the existence of the marriage relation, or to secure the payment of an allowance for the support and maintenance of the wife or minor children of the parties. The decree shall specifically describe the real property affected and situate in this state. Anyseparate property of either party of which no disposition is made in the decree shall remain the separate property of such party, free of all claims of the other party; any community property for which no provision is made in the decree shall be from the date of such decree, held by the parties as tenants in common,...