Stauss v. Stauss, 6194
| Decision Date | 04 June 1957 |
| Docket Number | No. 6194,6194 |
| Citation | 312 P.2d 148,82 Ariz. 268 |
| Parties | Eugene A. STAUSS, Appellant, v. Lillie STAUSS, Appellee. |
| Court | Arizona Supreme Court |
Moore & Moore, of Phoenix, for appellant.
Herbert Mallamo, of Phoenix, for appellee.
Lillie Stauss, plaintiff-appellee, was granted an absolute decree of divorce from defendant-appellant Eugene A. Stauss. There was no issue of the marriage. Incorporated within the decree was a division of the community property together with an allowance of attorney's fees to the wife. The husband has appealed only from the latter portions of the decree. He asserts that the trial court abused its discretion, both in the division of property and in the allowance of attorney's fees in the aggregate sum of $600, which he claims is excessive. For the sake of clarity we shall refer to the parties wither as plaintiff and defendant or as husband and wife.
The parties were married July 26, 1952, and lived together-with some brief interruptions-for approximately fifteen months. The wife, in October 1953 instituted the action for divorce; defendant answered the complaint and also counterclaimed for a divorce. A month later the court gave the husband possession of the home and awarded the wife an attorney's fee of $250, and $150 per month for her support, pendente lite. This allowance continued for a period of sixteen months as judgment was not rendered until June 1955. Throughout the marital period the wife was employed as a teacher at a salary ranging from $4,000 to $4,300 per annum. There was such a commingling of community and separate funds of the parties during this period that it was impossible for the court, with the imperfect records kept, to ascertain with accuracy just what disposition was made of such income.
During this marriage the parties acquired the following property: a home located at 6032 North 18th Street in Phoenix, title to which was taken in the names of both spouses; a 1953 Plymouth automobile and a 1953 Chrysler automobile; and certain household furnishings. During coverture defendant paid to a former wife approximately $7,900 for her interest in the business they had owned, known as the 'Phoenix Generator Exchange'. He continued to operate this as manager at all times during this marriage.
The lower court awarded the wife the following: all furniture presently in her possession, the Plymouth automobile, and $2,000 'as and for her share of the community interest in the business operated by the defendant'. The husband was awarded all the furniture and fixtures within and upon the premises at 6032 North 18th Street, the 1953 Chrysler, and the generator business as his separate property. The latter was impressed with a lien in favor of plaintiff for $2,000. The Eighteenth Street property was awarded to plaintiff and defendant as tenants in common. An additional attorney's fee of $350 for services rendered plaintiff was assessed against defendant.
Defendant urges substantially the following assignments of error: (1) the home should not have been awarded to the parties as tenants in common for the reason that the 'down payment' of its purchase price was made from the husband's separate funds, but if the court were correct, it erred in failing to credit the husband for such contribution of his separate property; (2) the award of $2,000 to plaintiff as her share of the community interest in the generator business was erroneous because the evidence discloses it to be defendant's separate property and there was no appreciation in its value during marriage; (3) if the community had an interest in the business, the court erred in failing to credit defendant for contributions of separate property to community property; (4) the division of community property failed to take into consideration the receipt by plaintiff of $2,400 as 'temporary support' while the action was pending; (5) the attorney's fees assessed against defendant are excessive in view...
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...The facts of this case speak for themselves and are such that the trial court was justified in applying the law of Stauss v. Stauss, 82 Ariz. 268, 312 P.2d 148 (1957); Evans v. Evans, 79 Ariz. 284, 288 P.2d 775 (1955); Barr v. Petzhold, 77 Ariz. 399, 273 P.2d 161 (1954); Lawson v. Ridgeway,......
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