Wick v. Wick

• Decision Date: 30 September 1971
• Docket Number: No. 10474--PR,10474--PR
• Citation: 107 Ariz. 382,489 P.2d 19
• Parties: Henry C. WICK, III, Appellant and Cross-Appellee, v. Jane Kent WICK, Appellee and Cross-Appellant.
• Court: Arizona Supreme Court

Page 19

489 P.2d 19

107 Ariz. 382

Henry C. WICK, III, Appellant and Cross-Appellee, v. Jane Kent WICK, Appellee and Cross-Appellant.

No. 10474--PR.

Supreme Court of Arizona, In Banc.

Sept. 30, 1971.

Rehearing Denied Oct. 27, 1971.

Max M. Klass, Phoenix, for appellant and cross-appellee

Favour & Quail by John M. Favour, Prescott, for appellee and cross-appellant.

UDALL, Justice:

This case is before us on a petition for review of a decision of the Court of Appeals, 14 Ariz.App. 127, 481 P.2d 298 (1971), modifying the judgment of the trial court. The decision of the Court of Appeals is vacated, and the judgment of the trial court is hereby affirmed for the reasons advanced below.

The facts of the case at bar are as follows: On June 4, 1965, Henry C. Wick, III, filed a complaint in the Superior Court for Maricopa County seeking a divorce from his wife, Jane Kent Wick. Jane, defendant in the divorce action, answered the complaint and counterclaimed for divorce.

On May 18, 1966, approximately one year after institution of the divorce action by Henry, the parties entered into a 'Separation and Property Settlement Agreement', whereby they agreed to a complete settlement of all rights arising out of the marital relation. This agreement was breached almost immediately by Henry and on June 17, 1966, Jane filed a contract action based on the terms of the separation and property settlement agreement. Henry, in his amended answer, admitted having executed the agreement but denied its validity, alleging undue influence, duress and illegality.

The divorce action and the contract action were, upon stipulation of the parties In the divorce action, the trial court awarded Jane $12,500.00 for attorneys' fees, decreed that Jane be awarded a decree of absolute divorce, and granted her custody of the parties' minor son but refused to merge the separation and property settlement agreement in the divorce decree on the grounds that 'said agreement does not represent a fair and equitable distribution of the community property of the parties.' The court then proceeded to include many of the provisions of the separation and property settlement agreement, while rejecting and modifying still others. The nature of which changes is not relevant here.

consolidated for trial. On July 21, 1967, the trial court entered separate judgments in the two actions. Judgment in the contract action was for the plaintiff-wife for the full amount sought in her amended complaint ($24,632.64 for payments due under the terms of the separation and property settlement agreement). Jane was also awarded judgment against Henry on both Count I (relating to the alleged invalidity of the agreement) and Count II (relating to Henry's request for reformation of the agreement) of Henry's counterclaim in the contract action.

Jane appealed from the portion of the court's judgment in the divorce action which refused to incorporate the property settlement agreement into the divorce decree, and cross-appealed in the contract action with respect to the trial court's failure to have rendered judgment in her favor, as plaintiff, against Henry for her attorneys' fees payable under the parties' separation and property settlement agreement. Henry, on the other hand, has appealed from the judgment entered in Jane's favor in the contract action.

CONTRACT ACTION

We are in complete agreement with the lower court's decision upholding the validity of the separation and property settlement agreement and denying reformation of said agreement. Jane's contention that she was entitled to attorneys' fees of $10,000.00 in the contract action by virtue of Paragraph 5 of the separation and property settlement agreement is without merit.

It is obvious, that in awarding attorneys' fees, the trial court did not allocate the amounts to be awarded in each separate action but, instead, awarded Jane the total sum of $12,500.00 for attorneys' fees incurred in prosecution of the contract action and in defense of the divorce action. Since the trial court did not allocate any specific amount to either of the two actions, we are unable to say that the trial court had not, in fact, awarded Jane $10,000.00 for attorneys' fees in the contract action with an additional $2,500.00 for attorneys' fees in the divorce action.

DIVORCE ACTION

A husband and wife, in contemplation of a separation and divorce, may, by a valid agreement between themselves, settle and adjust all property rights growing out of the marital relation. Ordinarily, assuming the agreement is otherwise valid, in an action for divorce the court will approve a valid separation and property settlement agreement and incorporate it into the divorce decree, provided the settlement is 'free from any taint of fraud, coercion or undue influence * * * (the parties) acted with full knowledge of the property involved and (their) rights therein, and that the settlement was fair and equitable.' In re Estate of Harber, 104 Ariz. 79 at 88, 449 P.2d 7 at 16 (1969); Roden v. Roden, 29 Ariz. 398, 242 P. 337 (1926); Long v. Stratton, 50 Ariz. 427, 72 P.2d 939 (1937).

In a divorce action, the trial court has authority to exercise full equity powers and jurisdiction since such actions are generally considered equitable actions and are, therefore, conducted under the rules of equity. Genda v. Superior Court, County of Pima, 103 Ariz. 240, 439 P.2d 811 (1968); Crook v. Crook, 80 Ariz. 275, 296 P.2d 951 (1956). In the exercise of its powers in a divorce action the trial court has...