Weaver v. Weaver

Decision Date09 March 1982
Docket NumberNo. 15748-PR,15748-PR
Citation643 P.2d 499,131 Ariz. 586
PartiesJoene H. WEAVER, Petitioner/Appellee, v. John D. WEAVER, Respondent/Appellant.
CourtArizona Supreme Court

Galia Davis, Tucson, for petitioner/appellee.

Rabinovitz & Dix by J. Stephen Dix, Tucson, for respondent/appellant.

HAYS, Justice.

We accepted this Petition for Review to determine whether the trial court in a dissolution proceeding has jurisdiction to grant a money judgment against one spouse for damage to the separate property of the other spouse. We have jurisdiction pursuant to 17A A.R.S. Rules of Civil Appellate Procedure, rule 23, and A.R.S. § 12-120.24.

Petitioner-appellee Joene H. Weaver (hereinafter "wife") filed an amended Petition for Dissolution of Marriage and Order to Show Cause which also alleged that respondent-appellant John D. Weaver (hereinafter "husband") had intentionally destroyed certain of her separate property in the amount of $5,000. Husband accepted service. Forty-four days after service, wife mailed a Notice of Intent to Take Default to husband. The following day default was entered. Despite a Motion to Set Aside Default, the trial court entered a Decree of Dissolution and awarded money damages. On appeal, the Court of Appeals affirmed the judgment of the trial court and stated that a trial court could award a money judgment in dissolution proceedings. Weaver v. Weaver, Ariz.App., 643 P.2d 503, 1981.

In denying husband's Motion for Rehearing, the Court of Appeals cited Proffit v. Proffit, 105 Ariz. 222, 462 P.2d 391 (1969), for the proposition:

"that the dissolution court has inherent power to require restitution for separate property of a spouse which has been converted by the other spouse and to include in the dissolution decree a direction for payment of money."

In the Proffit case, the defendant-wife had redeemed for cash certain savings bonds which were the separate property of the plaintiff-husband. At the time the decision was rendered, A.R.S. § 25-318(A), which was later amended, provided in pertinent part "A. In 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...."

Because the standards to be applied in a dissolution proceeding are those of an equity court, Crook v. Crook, 80 Ariz. 275, 278, 296 P.2d 951, 952 (1956); Schwartz v. Durham, 52 Ariz. 256, 264, 80 P.2d 453, 456 (1938), we concluded that by exercising its equitable powers the court, without exceeding its statutory authority, was able to direct the defendant-wife to relinquish possession of the money. Only because the separate property wrongfully possessed in Proffit was converted into money did relinquishment of possession necessitate the payment of a sum of money. Thus, our holding permitting a court in a dissolution proceeding to require the defendant to pay a sum of money to the plaintiff was premised upon the defendant's actual possession of the other spouse's separate property which happened to be in the form of money. Under the present wording of A.R.S. § 25-318(A) which permits the court to "assign each spouse's sole and separate property to such spouse," given the facts in Proffit, the same equitable result would be reached. In the instant case, however, we are not dealing with possession, but rather destruction, of separate property.

Despite the application of equitable standards in a dissolution proceeding, it remains a statutory action, and the trial court has only such jurisdiction as is granted by statute. Andrews v. Andrews, 126 Ariz. 55, 58, 612 P.2d 511, 514 (App.1980); Van Ness v. Superior Court, 69 Ariz. 362, 365, 213 P.2d 899, 900 (1950). A.R.S. § 25-311 vests the superior court "with original jurisdiction to hear and decide all matters pursuant to this chapter." Thus, Title 25 defines the boundaries of a dissolution court's jurisdiction, and the court may not exceed its jurisdiction even when exercising its equitable powers.

Title 25 was amended subsequent to our decision in Proffit. A.R.S. § 25-318, in particular, was amended to provide in pertinent part:

"A. In a proceeding for dissolution of marriage, ... the court shall assign each spouse's sole and separate property to such spouse. It shall also divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct.... Nothing in this section shall prevent the court from considering excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.


"C. The court may impress a lien upon the separate property of either party or the marital property awarded to either party in order to secure the payment of any interest or equity the other party has in or to such property, or in order to secure the payment of an allowance for child support or spousal maintenance or both...."

Under this statute, a court is not precluded from considering destruction of property in dividing the community, joint tenancy or other commonly held assets acquired during marriage. However, no such provision is made for separate property. In fact, nowhere in Title 25 is there a statute which authorizes the superior court to allow a money judgment for damage by one spouse to the separate property of the other spouse in a dissolution proceeding. The dissolution court cannot, even in equity, assume jurisdiction not provided by statute. Its jurisdiction with respect to separate property is limited to assigning to each spouse his or her separate property under § 25-318(A) and impressing a lien pursuant to § 25-318(C). It has no jurisdiction to grant a money judgment against one spouse for damage to the separate property of the other spouse in a dissolution proceeding.

The opinion of the Court of Appeals is vacated, the judgment of the trial court awarding damages in a dissolution proceeding for the destruction of separate property is reversed, and the case is remanded for further proceedings consistent herewith.

HOLOHAN, C. J., and CAMERON and FELDMAN, JJ., concur.

GORDON, Vice Chief Justice, specially concurring:

I specially concur in the majority's opinion. Although I agree with the analysis presented, I believe the result reached is dictated by a more fundamental principle-the right to trial by jury.

Article 2, § 23 of the Arizona Constitution provides in part, "The right of trial by jury shall remain inviolate." The same right is protected by Rule 38(a), Arizona Rules of Civil Procedure. It is well-settled in Arizona and elsewhere that in actions at law, such provisions give either party the right to demand a trial by jury with a binding jury verdict. But for actions in equity, I agree with the Court of Appeals when it said, "The situation in Arizona pertaining to the right of a jury trial in an equity case is a curious one * * *." Hammontree v. Kenworthy, 1 Ariz.App. 472, 477, 404 P.2d 816, 821 (1965).

Section 1389 of the 1901 Revised Statutes of the Territory of Arizona guaranteed the right to trial by jury in cases at law and equity. When Arizona became a state and enacted a...

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  • Martin v. Martin
    • United States
    • Arizona Court of Appeals
    • 15 Julio 1986
    ...discretion since the trial court only has such jurisdiction in a dissolution proceeding as the statute grants to it. Weaver v. Weaver, 131 Ariz. 586, 643 P.2d 499 (1982). The dissent relies on case law from several non-community property states in arguing for a broader application of § 25-3......
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