Spector v. Spector

• Decision Date: 04 May 1972
• Docket Number: CA-CIV,No. 2,2
• Citation: 496 P.2d 864,17 Ariz.App. 221
• Parties: Larry D. SPECTOR, Appellant, v. Lois E. SPECTOR, Appellee. 999.
• Court: Arizona Court of Appeals

Page 864

496 P.2d 864

17 Ariz.App. 221

Larry D. SPECTOR, Appellant, v. Lois E. SPECTOR, Appellee.

No. 2 CA-CIV 999.

Court of Appeals of Arizona, Division 2.

May 4, 1972.

Rehearing Denied June 7, 1972.

Review Denied July 13, 1972.

D'Antonio & Videen, by Lawrence P. D'Antonio, Tucson, for appellant.

Whitehill, Berger, Gin & Karp, P.C., by Edward B. Berger and David D. West, Tucson, for appellee.

HATHAWAY, Judge.

This appeal is from a divorce decree dismissing defendant's counterclaim, directing payment of alimony and child support, dividing community property and ordering the defendant-husband, appellant herein, to pay community debts and attorneys fees.

The parties were married in Mt. Vernon, New York, on December 28, 1958. Three children, aged 10, 8 and 5 at the time of trial in November 1970, were born of that union. The parties moved to Arizona from New York in 1963. The defendant has continuously resided in Arizona, the plaintiff and children having moved to New Jersey during the pendency of this action. Numerous allegations of error have been propounded by appellant. For ease of consideration we have grouped the allegations under applicable headings.

DIVISION OF COMMUNITY PROPERTY

Defendant claims the trial court found community assets valued at $122,162.04. Of this amount $61,700.00 was awarded plaintiff and $60,464.04 awarded defendant. Defendant was, however, ordered to pay community obligations which he claims amounted to $123,204.32, thus, there were not sufficient assets to pay the obligations. ¹ He asserts only 'net' assets may be distributed. Defendant recognizes that the record must be reviewed by this court in a light most favorable to upholding the decision of the trial court and that the trial court has wide discretion in dividing and distributing community property in a divorce case. He urges, however, that the trial court abused that discretion and that the record is devoid of probative evidence in behalf of plaintiff to support the judgment, findings of fact and conclusions of law.

Standards for property distribution pursuant to a divorce judgment are set forth in A.R.S. § 25--318, subsec. A (Supp.1971--72) which provides:

'On entering a judgment of divorce the court shall order such division of the property of the parties as to the court seems just and right, according to the rights of each of the parties and their children, without compelling either party to divest himself or herself of title to separate property. . . .'

The statute does not mandate a distribution of only net assets but rather vests the widest discretion in the trial court to distribute the property as it deems 'just and right.' Defendant in support of his argument cites the following language from McClennen v. McClennen, 11 Ariz.App. 395, 398, 464 P.2d 982, 985 (1970):

'But, not only should the court take into consideration the value of the community property, it should also take into consideration the total amount of the community liabilities in deciding the division of the property.'

We agree that normally the trial judge must consider the community liabilities as such requirement is implicit in making a just distribution. Once having considered the liabilities, however, the trial court can within its discretion properly allocate payment of the liabilities to one or both parties. Srock v. Srock, 11 Ariz.App. 483, 466 P.2d 34 (1970). The question before us is whether the trial judge abused his discretion in the instant case.

Plaintiff introduced testimony and exhibits illustrating that $82,000 of the community liabilities was in the nature of a 'family obligation,' which in all likelihood would not be repaid. Indeed, the trial court found notes payable to Martin Spector, father of defendant, in the amount of $82,000, ² 'some of which was treated as community property;' that although some sums due on the notes were longstanding, defendant's father had never made a demand for payment; that the court was unable to determine the exact nature of the obligation (apparently due to inadequate records), and most crucial, that on four separate occasions involving two different banks defendant did not list the notes as being a liability on his financial statement when applying for loans from those banks. The defendant himself referred to the obligation as a 'father-son relationship,' which 'luckily' he didn't have to pay tomorrow.

The court further found that shortly after plaintiff filed for a divorce defendant sold community securities purchased for $54,465.64 and received cash in the amount of $33,023.54 ³ which he disposed of by paying 'some obligations, child support and alimony payments resulting in the fact that all of the funds received for the sale of securities were expended prior to the trial of this action.' There was no showing that defendant was compelled to divest himself of separate property to satisfy the obligations and the order under the circumstances was not an abuse of the trial court's discretion. Appellant further argues that only in cases where there has been clear evidence of a flagrant violation of traditional marital duties may the court make an unequal division of property, Finck v. Finck, 9 Ariz.App. 382, 452 P.2d 709 (1969), and that the instant case even lacks corroboration of the grounds for divorce as required by A.R.S. § 25--317, subsec. B (1956). The trial court found defendant guilty of 'excesses and cruel treatment toward plaintiff' and that plaintiff was not guilty of like conduct toward defendant.

The purpose of corroboration is to prevent collusion and when, as here, the divorce was vigorously contested and there was plainly no collusion only slight corroboration will suffice. Williams v. Williams, 86 Ariz. 201, 344 P.2d 161 (1959). Unlike Williams where the plaintiff failed to call a single witness plaintiff here called Dr. Leland Reeck, a psychiatrist. Dr. Reeck testified that he first saw plaintiff for underlying problems in her relationship with her parents. In his words, 'the marriage problems came in as present stresses which he felt could be handled by therapy directed at the earlier problems.' He further testified that some months later plaintiff returned being disturbed about her marital relationship; that she seemed intent upon deliving into the problems in her marriage in an attempt to solve them and work them out, and that she was trying to change herself to accomplish these results. He testified that defendant 'was not accepting his change, was not searching for what he could change within himself to make the marriage work;' that he had requested defendant to come in for interviews which he did twice and then stopped, and that in his opinion defendant 'did not want to participate in this or would not participate.' He also testified that in his view there was an objective basis for plaintiff's finding this marriage difficult and ending up where it did.

Defendant himself testified that due to the tremendous pressures he was under at the time as a result of his job and business ventures that: 'I was just not a very understanding person,' and that on one occasion he had slapped plaintiff after a heated argument. Defendant in his counterclaim alleged cruelty on the part of plaintiff and offered corroborating testimony of his brother, Alan, to show that the marital difficulties were the result of plaintiff's immature attitude toward money and her need to spend beyond their means. Alan's testimony, while suggesting the problems stemmed from plaintiff's overspending, also substantiated that the marriage had been in 'turmoil . . . since the fall of '69,' and that the couple had constantly argued and bickered.

We believe the evidence supported the trial couret's granting of the divorce to the plaintiff and the rejection of defendant's counterclaim. There is no requirement that corroboration be the equivalent of confirmation.

'It is necessary only that the testimony of the complaining party be supported and strengthened by the corroborating evidence, not that it be confirmed in detail, (citation omitted). Corroborating testimony is sufficient if it tends to satisfy the impartial and reasonable mind that the plaintiff's material testimony is true, (citations omitted).' Kennedy v. Kennedy, 93 Ariz. 252, 254, 379 P.2d 966, 968 (1963).

Defendant further argues that Dr. Reeck's testimony must be excluded because 'he was merely parroting the plaintiff, not in any way substantiating the truth of her testimony.' Dr. Reeck, however, was not testifying to the truth of statements made to him by plaintiff but rather offered his opinion regarding the nature and causes of the problems for which he was treating plaintiff. A physician may base his opinion entirely on his personal examination and observation of the plaintiff, or in part on the history as related to him by the patient. M. Udall, Arizona Law of Evidence § 24 (1960). Plaintiff was a patient of Dr. Reeck from March 1967 to June 1970. In addition, he saw defendant on at least two occasions. Defendant did not object to his testimony at trial and we find when it is taken with defendant's and Alan Spector's testimony, it sufficiently corroborated plaintiff's material allegations.

Other circumstances besides violation of the traditional marital duties may be considered by the trial court in distributing the property. Finck v. Finck, supra. In the instant case not only did the court find plaintiff to be faultless it found that: She had been accustomed, since marriage, to living on $3,000 a month; her only employment had been light duties in the nursing home managed by her husband where she earned over $14,000 a year; she had medical problems with her back requiring hospitalization in the past which may continue, ⁴ and that as a result of the decree her earning power would be limited in the future. Further, as we have pointed out there is some evidence that defendant dissipated community assets after the divorce was...