Schwartz v. Schwartz

• Decision Date: 16 May 1938
• Docket Number: Civil 3826
• Citation: 52 Ariz. 105,79 P.2d 501
• Parties: HARRIET D. SCHWARTZ, Appellant, v. WILLIAM A. SCHWARTZ, Appellee
• Court: Arizona Supreme Court

79 P.2d 501

52 Ariz. 105

HARRIET D. SCHWARTZ, Appellant, v. WILLIAM A. SCHWARTZ, Appellee

Civil No. 3826

Supreme Court of Arizona

May 16, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment affirmed.

Messrs Struckmeyer & Flynn, for Appellant.

Messrs Hayer & Allee, for Appellee.

OPINION

ROSS, J.

This is an appeal from that part of the judgment and decree of divorce dividing the community proper. The divorce was given to the appellant upon her cross-complaint, as also the custody of the fifteen year old minor child, Katherine, the only issue of the marriage. This latter part of the decree stands unchallenged.

During the marital relations from August, 1918, to June, 1936, when such relation was judicially dissolved, the community had accumulated considerable property. Most of this property consisted of the savings from the appellee's professional income, who during all the time was a physician and surgeon located and practicing in Phoenix, Arizona. He had only $1,000 to begin with. According to the record, such income, after deducting the family living, was invested in real estate, stocks bonds, and life insurance and annuities. These were treated as assets of the community. An exception was the home at 721 West Palm Lane, Phoenix, which, together with the furniture, was in 1929 bought and paid for out of the community income and given to the appellant as heres. The purchase price of the home was $10,000. The improvements thereon cost $2,000 and the furnishings $3,000 to $4,000.

In 1930 the relations of the parties became so strained that appellee took rooms at the Atizona Club and ceased living at the home. They have not lived together since that date as husband and wife, but appellee continued his parental attention to his child, Katherine, by visiting her at the home from thime to time and by making provision for her present and future care and education. He also gave appellant for the maintenance of the home $500 per month for 1929, 1930, and 1931, and $400 per month for 1932, and thereafter $250 to $300 per month.

On November 24, 1931, and after they had ceased to live together, the appellee indorsed over to the First National Bank of Arizona stocks, bonds, and secured real estate mortgages belonging to the community of the value of $47,208.43 in trust for the use and benefit of appellant and the minor child, Katherine. In the trust estate was $10,000 belonging to appellant, being a sum she had inherited and which had been invested in stocks and other securities, so that the trust estate amounted to $57,208.43. There should be added to this the value of the home and its furnishings to ascertain the total of the appellant's assets.

The appellee retained of the community property then in his possession and thereafter acquired through his earnings approximately $72,875.10. Included in this are bills receivable in the sum of $16,390.35, estimated as being worth around $9,000; also various insurance and annuity policies with a cash surrender value of $25,952.77. The appellant was originally named as the beneficiary in these policies, or most of them, but they have been changed to designate Katherine, who was at the time of the trial thirteen and one-half years old, as the beneficiary.

Out of the community provision for Katherine had been made as follows: Paid-up annuities taken out in 1931 and 1933 by appellee in the sum of $12,802.77, and a savings certificate maturing in 1938 for $10,000. The appellee also paid to the New York Life Insurance Company the sum of $500, for which said company agreed to send Katherine every year on her birthday a check during the rest of her life, which amounts to approximately $20 a year.

The figures given may not be accurate but are approximately so.

The court's decree divided the community property by giving to the appellant the trust estate and by giving to appellee that portion of the community in his possession at the time of the trial.

The court further decreed that the appellee should pay $100 per month for the support of Katherine and $200 per month for the support of the appellant until the further order of the court. In addition to this award of $3,600 a year for support, it appears the net income appellant received form the trust estate was approximately $3,000 a year. It amounted to $2,681.99 in 1934 and $3,170.13 in 1935. Under present rates of interest this income probably has been considerably reduced.

It may also be stated that the carrying charges upon the insurance policies on appellee's life are $2,937.28 annually.

Appellant contends that the court erred in taking into consideration the trust estate in connection with the division of the community property. She insists that the trust property was hers individually; that it had been given to her by appellee and was no more to be considered an asset of the community than the $10,000 she inherited. Her position therefore is that the only community property was what was left after deducting the trust property and that the court should have given her one-half thereof.

There can be no question but that the husband and wife as long as they are such are equal owners of the property acquired by their joint efforts during coverture. La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426, Ann. Cas. 1915B 70; Molina v. Ramirez, 15 Ariz. 249, 138

Pac. 17. It is also well settled that husband and wife may make valid gifts inter sese of their interest in the community property to each other so that it becomes separate property of the donee. Schofield v. Gold, 26 Ariz. 296, 225 P. 71, 37 A.L.R. 275; Lightning Delivery Co. v. Matteson, 45 Ariz. 92, 39 P.2d 938, 939; In re Baldwin's Estate, 50 Ariz. 265, 71 P.2d 791. It is also settled by the statutes and decisions that the court cannot in its decree of divorce award to either of the spouses the separate property of the other. Wiltbank v. Wiltbank, 18 Ariz. 435, 162 P. 60; Brown v. Brown, 38 Ariz. 459, 300 P. 1007.

The provision of the statute which controls the court in the matter of dividing community property upon a decree of divorce being granted is found in section 2182, Revised Code of 1928, and reads, so far as material, as follows:

"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."

If it should be granted that the trust estate was the separate property of appellant, the decree does not divest her of her title thereto. Under the decree it continues to be her property. However, there is no prohibition against the court's considering any advances in the way of gifts or donations one of the spouses may have received from the community property in ordering the division. Indeed it would seem what is "just and right, according to the rights of the parties and their children" could not be ascertained or determined without such consideration.

The division made by the decree is not widely disproportionate. However, should appellant be given...