Stanley v. McKenzie
| Decision Date | 21 November 1925 |
| Docket Number | Civil 2385 |
| Citation | 29 Ariz. 288,240 P. 1033 |
| Parties | WISTER V. STANLEY, Appellant, v. MABEL G. STANLEY McKENZIE, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Navajo. J. E. Crosby, Judge. Reversed and remanded.
Messrs Crosby & Sawyer, for Appellant.
Mr John L. Sweeney, for Appellee.
On July 11, 1924, and upon the complaint of Wister V. Stanley, a decree dissolving the bonds of matrimony existing between him and Mabel G. Stanley on the ground of cruelty was entered by the superior court of Navajo county. The decree was silent as to the community property, alimony and the custody of the two minor children, Lawrence, a son, fourteen years of age, and Leah, a daughter, nine. Just previous to the separation and divorce, however, and in contemplation thereof, the parties entered into a written agreement by which the father was given the custody of the son and the mother the daughter, and on the following day, to wit, July first, the mother executed a deed in which she conveyed to the father, for a consideration of one dollar her interest in the community property, consisting of a house and lot in the town of Winslow valued at $3,500 or $4,000.
Soon after the divorce decree was entered, Mabel G. Stanley married one Arthur McKenzie, and within a few days thereafter, to wit, on July 29, 1924, instituted this action for the purpose of obtaining the following relief: The annulment of the said contract and deed, upon the ground that she was induced to sign them by means of fraud and duress that she be awarded one-half of the community property and the custody of the two children, and that during their minority appellant be required to pay her sixty dollars a month for their maintenance and support. The court made no order annulling the deed and contract, but entered this judgment: That Wister V. Stanley pay Mabel G. Stanley the sum of $1,000; that she have the custody of the daughter, Leah; and that Wister V. Stanley pay her the sum of twenty dollars a month toward the support of the daughter during her minority. It is from this judgment the defendant appeals.
The divorce was based upon cruelty, but the true reason for the separation was the intimate relations existing between appellee and Arthur McKenzie; the record disclosing that they were frequently together, both at her house and elsewhere, through a period of several years, while appellant, who was a brakeman on the Santa Fe Railroad, was on his run between Winslow and Williams. These relations became known to appellant in June, 1924, while appellee was in Kansas visiting relatives, and immediately thereafter he wrote her not to return to Winslow, as they could live together no longer; but she did return without delay, and remained there a few days, during which time the deed and contract in question were executed. The testimony as to the manner in which her signature to these instruments was secured covers a number of pages, but, inasmuch as the judgment entered discloses that the issue raised thereby was not determined, it would serve no purpose to state it here.
A number of errors are assigned, but in our view the determination of one of them, namely, that the judgment is outside of the issues made by the pleadings and proof disposes of the case. The first and principal issue to be determined was whether appellee was induced through the fraud and duress of appellant to execute the deed and contract in question, and the record discloses that, regardless of what the court thought relative thereto, it was not determined, for under the judgment rendered the deed remained in full force and effect, and the house and lot continued to be the property of appellant. The fact that appellee was given judgment in the sum of $1,000, and that in addition thereto appella...
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