Sands v. Sands.

• Decision Date: 13 September 1944
• Docket Number: No. 4842.,4842.
• Citation: 152 P.2d 399,48 N.M. 458
• Parties: SANDSv.SANDS.
• Court: New Mexico Supreme Court

48 N.M. 458

152 P.2d 399

SANDS

v.SANDS.

No. 4842.

Supreme Court of New Mexico.

Sept. 13, 1944.Rehearing Denied Nov. 6, 1944.

Appeal from District Court, Quay County; James C. Compton, Judge.

Suit for divorce by Leon P. Sands against Eula Gladys Sands. From the judgment granting him a divorce insofar as it purports to divide the community property, plaintiff appeals and defendant affirmatively asks for an accounting and division of the community property.

Judgment affirmed.

Court in granting a divorce had the duty under statute to divide the property of the community equally. 1941 Comp. §§ 25-702, 25-703.

C. C. Davidson, of Tucumcari, for appellant.

R. A. Prentice, of Tucumcari, for appellee.

MABRY, Justice.

Appellant Leon P. Sands sued for and was granted a divorce from appellee Eula Gladys Sands upon the grounds of incompatibility, and a division of the community property as between the parties was then and there made. Appellant appeals from the judgment so far as it purports to divide, or apportion, the community property, claiming that it was not divided equally, as the statute provides it shall be. 1941 Comp., Sec. 25-702, 25-703. Appellee affirmatively asks for an accounting and division of the community property, and in his reply, appellant lists the community property subject to division and gives his estimate of its value.

It must be conceded that the jurisdiction of the trial court was invoked in the matter of a division of the property as it was in the matter of divorce. The net value of the property, as found by the court, was $35,000. The only issue presented by the appeal, appellant concedes, “is the power of the court to apportion community property between spouses in a suit for separation and divorce, except as it may be equally divided, setting apart to each of the spouses their undivided one-half interest in the property.” Beals v. Ares, 25 N.M. 459, 185 P. 780. Appellant contends that the division of the property here had was not upon the basis of equality as between the parties; that the trial court mistakenly undertook to “apportion,” rather than divide, understanding that it could, in its discretion, give a larger portion of the community property to appellee than to appellant, and that it did so make an uneven division thereof.

The following findings of facts and conclusions of law were made:

Findings of Facts

I. That both plaintiff and defendant are now, and have been for many years, prior to the filing of the complaint herein, residents in good faith of the State of New Mexico.

II. That a state of incompatibility exists between the plaintiff and defendant, and that by reason thereof the bonds of matrimony existing between the plaintiff and defendant should be dissolved and both restored to the status of single persons.

III. That all property now owned by the parties hereto is community property of the approximate net value of $35,000; and that each of said parties is entitled to an undivided one-half interest therein.

IV. That the plaintiff, Leon Sands, is hereby awarded, of the community property, all right, title and interest in and to the shares of stock of the Sands-Dorsey Drug Company, a domestic corporation, together with the stock of drugs, goods, wares, merchandise, accounts receivable, accounts payable, cash in bank and on hand, notes receivable and notes payable, fixtures and good will of the said Sands-Dorsey Drug Company, subject to the payment of the items of indebtedness upon the property hereby awarded to the defendant. There is also awarded to the plaintiff that certain bowling alley now located near Pecos, Texas, consisting of fixtures, equipment, merchandise and accessories. There is also awarded to the plaintiff one certain automobile described in the complaint and now in possession of the plaintiff.

V. That the defendant, Eula Gladys Sands, is hereby awarded, free and clear of any interest, claim or demand thereon or thereto of the plaintiff, Leon Sands, the following property: That certain residence, together with the premises whereon the same is situated, located west of Tucumcari, on highway No. 66 and more particularly described as follows, to-wit: (description of the real estate) together with the improvements thereon and appurtenances thereto and the household furniture located in the buildings upon said real estate, all subject to a mortgage in the approximate sum of twenty-five hundred dollars. A more particular description of said tract of land is as follows: (description of tract of land).

VI. That the defendant is also awarded, free and clear of any interest, claim or demand thereto or therein by the said Leon Sands, the following described lots and parcels of land located in Tucumcari, Quay County, New Mexico, to-wit: Lot Seven (7) in Block One (1) of the Barnes Addition to Tucumcari, New Mexico. Also, Lots One (1) to Twelve (12) both inclusive in Block Twenty-two (22) of the Highland Park Addition to Tucumcari, subject to the indebtedness thereon which indebtedness should be paid by the defendant.

VII. That the shares of stock in the Federal Investment Company, now standing in the name of the plaintiff, Leon Sands, in the number of 1490 shares, be and the same are hereby awarded to the defendant, free and clear of any right, title, interest, claim or demand thereon or thereto by the plaintiff; that plaintiff pay Bernice Clavel the approximate sum of $7,500, being the amount due the said Bernice Clavel by the parties hereto and which is secured by said stock as collateral.

VIII. That the shares of stock in the First National Bank of Tucumcari is hereby awarded to the plaintiff, Leon Sands.

Based upon the foregoing findings, the Court concludes:

I. That plaintiff is entitled to a decree of divorce on the ground of incompatibility.

II. That the defendant is entitled to a decree awarding her all stock owned by the community in the Federal Investment Company, subject to the indebtedness thereof, which plaintiff should pay; that she is also entitled to a decree awarding her the real estate as set forth in the...