Schwartz v. Durham
| Citation | 52 Ariz. 256,80 P.2d 453 |
| Decision Date | 20 June 1938 |
| Docket Number | Civil 3953 |
| Parties | ARTINA W. SCHWARTZ, Appellant, v. M. H. DURHAM, Appellee |
| Court | Supreme Court of Arizona |
APPEAL from a judgment of the Superior Court of the County of Pima. Henry C. Kelly, Judge. Judgment reversed and cause remanded with instructions.
Mr John M. Schwartz, of Los Angeles, California, for Appellant.
Messrs Mathews & Bilby and Mr. T. K. Shoenhair, for Appellee.
This is an appeal by Artina W. Schwartz, hereinafter called appellant, from a judgment in favor of M. H. Durham hereinafter called appellee. The facts essential to a determination of this case are not in serious dispute, and may be stated as follows:
Appellant and appellee were married on November 12, 1919, and up to November, 1931, were husband and wife. During their coverture they acquired certain community property, among it being a gasoline filling station in Tucson, Arizona, together with the various appurtenances thereto. In December, 1929, appellee entered into a contract with the Firestone Tire & Rubber Company of California, a corporation, hereinafter called the California company, whereby he agreed to purchase two hundred shares of stock in Firestone Service Stores of Phoenix, a corporation, hereinafter called the Arizona company, and in payment therefor gave to the California company a promissory note, a guaranty of certain accounts receivable, and various other things of value. Thereafter, and in 1931, appellant filed an action for divorce. Before it was heard, the parties made a certain agreement settling their community rights. Under this settlement appellant conveyed to appellee by a bill of sale the two hundred shares of stock in the Arizona company, and a small amount of furniture. Appellee agreed to pay to appellant thirty-five dollars per month until she remarried, and gave to her certain household furniture, and they executed a written agreement which recited, among other things:
The evidence also shows that at the time this written agreement was executed appellant stated:
"Yes, the stock and the business are Milt's and I am leaving town and I don't want to hamper Milt; I want him to have it."
On November 10, 1931, a decree of divorce was rendered which recited the agreement of the parties above referred to in regard to alimony and a settlement and division of the community property, but adjudged as follows:
At the time this decree was rendered, neither appellant nor appellee had the slightest idea that the community had any cause of action against the California company on account of the transaction in which the two hundred shares of stock above referred to were purchased.
Some six months later the California company brought suit against appellee on the note and guaranty above referred to. He took the matter to his attorneys, and it was suggested to him that he might have a cause of action against it for damages on account of fraud in the transaction out of which the execution of the note and the purchase and sale of the stock arose. In answering the complaint, therefore, he set up as a cross-complaint such a cause of action. Appellant then for the first time learned that such cause of action might exist. The trial court, after all the evidence was in, instructed a verdict in favor of the California company. The case was appealed to this court, and in Durham v. Firestone Tire etc. Co., 47 Ariz. 280, 55 P.2d 648, we held that the court should have submitted the case to the jury on the issues raised by the complaint and the cross-complaint. Thereafter appellant took steps to notify appellee and his counsel that she claimed an interest in the cause of action set up in the cross-complaint, and tried to protect it in all reasonable manners. Come two months after our opinion was rendered in the case aforesaid, the California company settled the action by paying the sum of five thousand dollars, through a check made in favor of "Odin B. Dodd, attorney for M. H. Durham and Artina W. Schwartz," and secured a release from both appellant and appellee. Appellee's answer states this payment was made "by reason of the cross-complaint" in the action. The check was cashed by Dodd, upon his endorsement as attorney for both appellant and appellee. He first deducted from the proceeds the attorney's fee and costs of the action, and then, since appellant claimed half the balance, while appellee claimed it all, he paid to appellee the half which was not in dispute and paid the other half into court on an interpleader, reciting that both appellant and appellee claimed such money, and asked that they be required to litigate their claims among themselves. Both appellant and appellee answered, each claiming the money. The matter was tried by the court which rendered a judgment in favor of appellee, and this appeal was taken.
There are six assignments of error upon which appellant bases an equal number of propositions of law. Appellee objects to the assignments on the ground that they are insufficient. We have examined them, and, while it is possible they might have been more detailed in their language, we think they are sufficient to require a consideration of the appeal upon its merits.
There is no dispute that the cause of action set up by appellee's cross-complaint in the action brought by the California company was, at the time the right of action accrued, the community property of appellant and appellee, and, such being the case, each was equally interested therein in the same manner and to the same extent as they in any other community property. La Tourette v. La. Tourette, 15 Ariz. 200, 137 P. 426, Ann. Cas. 1915B 70. It is also the undisputed law that whenever a divorce is granted, any community property which is not disposed of by the decree of divorce is held by the parties thereafter as tenants in common. Williams v. Williams, 29 Ariz. 538, 243 P. 402.
The decree of divorce between appellant and appellee does not attempt in and of itself to dispose of the community property of the parties, except by recital of and reference to the agreement entered into between them before the divorce was granted. Community rights may be settled in this manner between the spouses if the agreement is approved by the court, and when so approved, it is a part of the judgment and binding on the parties to the same extent as if the division set forth therein had been decreed by the court of its own volition. Goodwin v. Goodwin, 47 Ariz. 157, 54 P.2d 268. These general principles of law are not disputed by either party.
The question before us then is, What was the effect of the agreement between the parties as to the ownership of the cause of action above referred to? It is shown conclusively by the evidence that at the time this agreement was entered into, neither appellant nor appellee had any idea that a cause of action of any nature existed against the California company. It is undisputed that the appellant specifically, in writing, conveyed to the appellee, as a part of their settlement of the community rights, the two hundred shares of stock in the Phoenix company, the sale of which by the...
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...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. Super......
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