Schilling v. Embree, 2

Citation575 P.2d 1262,118 Ariz. 236
Decision Date29 December 1977
Docket NumberNo. 2,CA-CIV,2
PartiesThomas SCHILLING, Appellant, v. James A. EMBREE and Toni A. Embree, husband and wife, and O'Rielly Motor Company, Garnishee, Appellees. 2568.
CourtCourt of Appeals of Arizona
McDonald & Nash by William F. McDonald, Jr., Tucson, for appellant
OPINION

RICHMOND, Judge.

This is an appeal from an order denying appellant's motion to quash a writ of garnishment served on his employer after judgment based on his post-marital separate tort liability. The question to be resolved is: What is the scope of the "other liabilities of a spouse" for which community property is liable under A.R.S. § 25- 215(B)? 1 Specifically, is it limited to premarital liabilities?

Appellees commenced an action for assault and battery against appellant and his wife. The case was tried to the court, which entered judgment in favor of appellant's wife but against him in the sum of $1,274 compensatory damages and $500 punitive damages. A writ of garnishment was served on his employer, O'Rielly Motor Company, which answered that it was indebted to appellant in the sum of $174.73 subject to garnishment. Appellant's motion to quash the writ was denied by minute entry order on January 14, 1977, and judgment against the garnishee was entered January 18, 1977. A written order denying appellant's motion to quash was not entered, however, until April 14, 1977.

At the outset, appellees contend that the appeal should be dismissed for lack of jurisdiction because it was not perfected within 60 days of either the denial of appellant's motion on January 14 or the judgment of garnishment entered January 18. 16 A.R.S., Rules of Civil Procedure, Rule 73(b). Notice of appeal from the January 14 order was filed on March 1, but no cost bond was filed until April 13, 1977. An amended notice of appeal from the written order entered April 14 was filed on April 18, 1977.

An order refusing to dissolve a garnishment is appealable. A.R.S. § 12-2101(F)(3). Like other judgments, as defined in 16 A.R.S., Rules of Civil Procedure, Rule 54(a), it must be in writing and signed by a judge or court commissioner duly authorized to do so. 16 A.R.S., Rules of Civil Procedure, Rule 58(a). Appellant's time for appeal thus did not commence until April 14, 1977, and his appeal was perfected within 60 days thereafter.

A.R.S. § 25-215(B) subjects community property to liability for " premarital separate debts or other liabilities" incurred after September 1, 1973, to the extent of the debtor spouse's contribution. It effectively eliminates the so-called "two-dollar bankruptcy" by which, for the initial cost of a marriage license, a debtor formerly could place his future wages and commingled assets beyond the reach of his creditors. The trial court accepted appellees' argument that while the statute applies only to separate debts incurred before marriage, it extends to all "other liabilities of a spouse" incurred after September 1, 1973, whether before or during marriage. We disagree and hold that the words "premarital separate" modify "other liabilities of a spouse."

Where a statute is ambiguous on its face, the reviewing court must ascertain the meaning intended by the legislature from the language used in the statute, aided by canons and rules of statutory construction. Greyhound Parks of Arizona, Inc. v. Waitman, 105 Ariz. 374, 464 P.2d 966 (1970). If there are several interpretations possible, the court will adopt that interpretation which is reasonable and avoids contradictions or absurdities. State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784 (1963).

It would be absurd to suppose the legislature intended § 25-215(B) to apply to "other liabilities of spouse" for which the community property already was liable. Thus it appears that "separate" was intended to modify not only "debts" but also "other liabilities." Inasmuch as "premarital" and "separate" are used in conjunction in modifying "debts," it follows that both were intended to modify "other liabilities."

Before enactment of § 25-215 in 1973, the community...

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14 cases
  • Carpenter v. Carpenter, 1
    • United States
    • Court of Appeals of Arizona
    • February 14, 1985
    ......Copins, 98 Ariz. 109, 402 P.2d 541 (1965) and Warren v. Warren, 2 Ariz.App. 206, 407 P.2d 395 (1965), for the proposition that Everson established nothing new in ...§ 25-215(B). 3 As Division Two of this court stated in Schilling v. Embree, 118 Ariz. 236, 239, 575 P.2d 1262, 1265 (App.1977), "we believe the manifest purpose of ......
  • deElche v. Jacobsen, 46715-3
    • United States
    • United States State Supreme Court of Washington
    • December 31, 1980
    ...... A.D., Book 10, Title 4, De Los Bienes Ganaciales O Adquiridos en el Matrimonio, Law 10 quoted at 2 deFuniak, Principles of Community Property, Appen. I, E. 20, Law 10 (1943). See W. deFuniak & M. ...Vozack, 113 Ariz. 269, 550 P.2d 1070 (1976); Schilling v. Embree, 118 Ariz. 236, 575 P.2d 1262, 1265 (1978) (relying on statute to define "(l)iability of ......
  • Mackinney v. City of Tucson
    • United States
    • Court of Appeals of Arizona
    • March 13, 2013
    ...of Casa Grande, 205 Ariz. 367, ¶ 5, 71 P.3d 359, 361 (App.2003); see also Walker, 163 Ariz. at 211, 786 P.2d at 1062;Schilling v. Embree, 118 Ariz. 236, 239, 575 P.2d 1262, 1265 (App.1977). For the recreational-use immunity statute to apply, the property on which the injury occurred must qu......
  • Walker v. City of Scottsdale
    • United States
    • Court of Appeals of Arizona
    • November 24, 1989
    ...... Owe any duty to a recreational user to keep the premises safe for such use. .         2. Extend any assurance to a recreational user through the act of giving permission to enter the ... Schilling v. Embree, 118 Ariz. 236, 575 P.2d 1262 (App.1977). We conclude from the language used in the ......
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