Becchelli v. Becchelli

508 P.2d 59, 109 Ariz. 229, 1973 Ariz. LEXIS 315

• Court: Arizona Supreme Court
• Decided: March 22, 1973
• Docket: 10938-PR
• Status: Published

Opinions

STRUCKMEYER, Justice.

This matter comes to us on a motion for review of an opinion of the Court of Appeals, Department B, which affirmed in part and reversed in part a decree of divorce. Opinion of the Court of Appeals, 17 Ariz.App. 280, 497 P.2d 396 (1972), approved as supplemented herein.

Since every question raised on this appeal is dependent upon the facts of the case, consistent with our invariable rule the evidence will be stated in the light most favorable in support of the judgment of the trial court.

Domenic Becchelli and Mary Becchelli were married in Phoenix, Arizona on October 19, 1966. Both parties were elderly, although Mary was some years younger than Domenic. He had retired in 1960, had a small pension and social security, and had accumulated a small estate in Colorado and Indiana. He came to Arizona with his former wife and acquired a home in joint tenancy with right of survivorship, which passed to him at the time of her death. He had children by this former marriage. In the course of the instant marriage, which lasted a little over three years, Domenic invested and re-invested funds from his separate estate in properties in Arizona. The re-investments of separate funds were usually, but not invariably, made in the joint names of himself and his wife.

At the time of marriage, Mary was in debt. She had possibly $200.00 in cash, which she kept on her person, and a new Buick automobile on which she had made two payments and on which she made the payments when she worked. She worked for about one year after the marriage. Separate income tax returns were filed by Mary for the three years of the marriage in order to take advantage of losses in investments she had incurred prior to marriage. The evidence does not establish any significant commingling by Domenic of his separate property with that of her community earnings.

In 1969, Domenic brought this suit for divorce, and Mary counterclaimed for separate maintenance. The trial court awarded Domenic a divorce, finding that Mary had been guilty of excesses and cruel treatment in constantly arguing with Domenic and inducing him to use his separate funds to enhance her estate.

A reading of the transcript of testimony of the trial convincingly establishes that Mary entered this marriage with the principal objective of obtaining security and strongly suggests that she constantly harassed Domenic in attempting to induce him to change the character of his separate property to joint ownership. The entire record of their married life tends to support the court’s finding, but several examples from the testimony are specifically noted. At one time during the course of the marriage, Domenic took $5,000.00 of his separate funds and placed it in a joint account with a son by his first marriage. Domenic testified concerning this:

“Q When she saw that, what did she say to you?

A She just raised the roof; why all to the son ? Why not me ?”

Mary’s testimony corroborated Domenic. She told the court that before their marriage he promised to give her the home which he and his former wife had acquired and in which Mary and Domenic lived after their marriage:

“Q Just one minute. Tell me what promise was made.

A Before we got married the promise was made that he would give me the house.

******

Q Now, was that statement ever repeated at a later date ?

A. Oh, yes.

Q How many times?

A Hundreds of times. Any time I asked.

Q And then I will ask you if there was any specific time that you can remember that he made that statement?

A The specific time was when I signed the contract that he sold the house [in Indiana] for six thousand and some dollars. I told him that I wouldn’t sign that paper unless he keep the promise on the house and the rest of the things * *

Mary urges that the trial..court erred in setting aside certáin property to Domenic on the grounds, first, that there was not sufficient evidence to show that the funds which went into these properties were the separate property of the plaintiff.

Mary testified concerning the house located at 3820 W. Avalon, taken by a joint tenancy deed with right of survivorship, that Domenic made the down payment of $500.00 from his separate funds, and that after its acquisition the property was rented for $100.00 a month. The rental payments came by checks payable to both Domenic and Mary. She endorsed the checks and he then made the mortgage payments of $77.00 a month.

Mary complains of a mortgage taken in their joint names on property described as Lot 42, Arizona Rancheros, which the court decreed was Domenic’s sole and separate property. As to this, Domenic testified that money from the sale of separate property in Colorado was used to make a loan of $2,000 secured by a note and mortgage payable to himself and Mary with right of survivorship.

Mary complains of the disposition of certain property in Yuma County. Domenic accepted a deed which transferred the property to the parties as tenants in common. Mary was asked:

“Q Well, that is separate funds, that $5,000?

A The $5,000, yes.

Q And where did that $5,000 come from?

A Well, you ask him that. I don’t—

Q I am asking you, Ma’am.

A I don’t know.

Q You don’t know?

A No, I know that nothing.

* * * . * * *

Q You don’t know of any money taken out of this book to pay for the property that was up there, located in Yuma County, is that right ?

A Yuma County?

Q Yes.

A The first I heard, the first part of the money that he gave, $5,000, he say he pay $6,000, I don’t know. I don’t know how much he gave for, $4,00 [iic] or something. It was first done, I didn’t see the book [bank passbook].

* * * * * *

Q You seem to know quite a bit about this transaction so tell the Court what money was paid, how many payments were made' to make up this $12,000?

A Well, the first part of it was a deposit of $500.

Q Where did that come from?

A I don’t know where he got. He is the one that just answers your questions.

Q What is the next item of payment?

A The next item was, let me see, seven, I think $5,000.

Q Where did that come from ?

A Ask him.

Q All right. The next item of payment?

A The next item of payment, 7,000 something in the vicinity that he gave the mortgage. Sold the mortgage to a friend of his. The second payment, the last part, but the first part it could have been my money.

Q It could have been?

A I don’t know. I don’t know. You ask him that.” (Emphasis supplied.)

The plaintiff, Domenic, testified:

“Q This property you bought in Yuma your wife testified cost $12,000?

A Yes, that’s right.

Q O. K. Now, that was paid by certain means, was it not?

A I paid, I got $4,000 from the east.

******

Q And how much credit did you get for that mortgage? Or did you borrow money—

A- I borrowed the money fo this fel-’ low. I gave him that mortgage for the transaction.

Q O. K. You borrowed how much from him?

A Eight thousand dollars.

Q Was ■ that the other part of the $12,000?

A Yes.

******

Q All right. Then all that went into the Yuma property was your money?

A That’s right.”

We think the evidence is sufficient to establish that these properties were acquired from the separate funds of the plaintiff.

Mary next urges that the court erred in setting aside these properties to Domenic as his sole and separate property for the reason that the evidence wholly fails to rebut the presumption of a gift of one-half interest in the properties to her. The facts substantiate her position. As stated, both parties were elderly and the marriage was entered into rather hastily, being about two weeks after they first became acquainted. It was seemingly understood that he would take care of her. She testified:

“* * * he told me, I should work, he’d give me security and things.”

It is the general rule of law that where property is paid for by one and taken in the name of another or jointly in both their names, a presumption arises that the property was taken in trust for the benefit of the one paying for the property. But as between husband and wife, the presumption as to real property is to the contrary. The law presumes a gift from the husband resting upon the proposition that the husband is discharging his legal duty to provide support for his wife. The decisions recognize that this is a rebuttable presumption, with some courts holding that evidence to rebut the presumption of a gift must be clear and convincing. Osuch v. Osuch, 146 Conn. 90, 148 A.2d 138 (1959); Walker v. Walker, 369 Ill. 627, 17 N.E.2d 567 (1938), cert. denied, 306 U.S. 657, 59 S.Ct. 774, 83 L.Ed. 1054 (1939); Frank v. Frank, 335 Mass. 130, 138 N.E.2d 586 (1956); Alexander v. Alexander, 44 S.W.2d 872 (Mo.App.1932); Lewis v. Bowman, 113 Mont. 68, 121 P.2d 162 (1942), overruled on other grounds, Cook v. Cook, 495 P.2d 591, 593 (Mont.1972); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); Carberry v. Carberry, 137 N.J.Eq. 9, 43 A.2d 215 (N.J.Chancery Ct.1945); Hall v. Bone, 210 Or. 98, 146-148, 309 P.2d 997 (1957); Christy v. Christy, 353 Pa. 476, 46 A.2d 169 (1946).

Nor is Arizona an exception to the rule. In Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945), a case in which the husband purchased property with his separate funds and took the title jointly with his wife, we said:

“The defendant had the right to use this method in making a gift of one-half of the property to plaintiff.” 63 Ariz. at 111-112, 159 P.2d at 791.

We also said: ■

“The presumption that a conveyance so taken constitutes a gift may be rebutted. The burden of proof is upon the husband to establish a resulting trust rather than that the transaction amounted to a gift. This can only be done by evidence showing a clear intention of the trust.” 63 Ariz. at 112, 159 P.2d at 791.

Domenic did not at any time say that he did not intend to give an interest in these properties to Mary, and there is no evidence whatsoever in this case that Domenic intended by these conveyances to do other than provide for his wife when he took title jointly with her. That he may have been incautious or imprudent is not the concern of the court. Nor may a court set aside a transaction merely because one or the other to a marriage contract has made a poor bargain.

Prior to 1962, by A.R.S. § 25-318, subsec. A, the Superior Court on dissolution of a marriage was required to:

“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.”

Under this language, it has long been held that a divorce court is without jurisdiction to award either party the separate property of the other. Schwartz v. Schwartz, 52 Ariz. 105, 109, 79 P.2d 501, 503, 116 A.L.R. 633, 636 (1938); Brown v. Brown, 38 Ariz. 459, 463, 300 P. 1007, 1008 (1931).

In 1962, the Legislature added this clause to § 25-318, subsec. A, supra:

“except that as to property held by the parties either as joint tenants with right of survivorship, as tenants in common, or as tenants by the entirety, the court may in the same action, on its own initiative or on petition of either party, order division of such property, or enter an order directing partition of such property * * *.”

In Needel v. Needel, 15 Ariz.App. 471, 489 P.2d 729 (1971), Division Two of the Court of Appeals held that the 1962 amendment empowered the Superior Court in a divorce proceeding to divide property held by the parties as joint tenants with right of survivorship, as tenants in common, or tenants in entirety in the same manner as community property, — that is, as to the court seems just and right. Thereafter, in Saxon v. Riddel, 16 Ariz.App. 325, 493 P.2d 127 (1972), Division One of the Court of Appeals came to a contrary conclusion; namely, that where there was separate property of the parties to a divorce proceeding, the amendment only permitted the court to enter a judgment in the divorce proceeding dividing or partitioning their jointly held property.

We do not agree with the construction placed upon § 25-318 as amended in Needel v. Needel. A reading of the original statute together with the amendment discloses no ambiguity arising out of the language used. The statute before amendment only directed that the court on enteriñg a judgment'of divorce order such a division of community property of the parties as it deems just and right without compelling either party to divest himself of title to separate property. The amendment of 1962 simply empowered the divorce court to, in the same action, either partition or divide the joint property. But we think it significant that the words were retained requiring the court to do so “without compelling either party to divest himself or herself of title to separate property.” Any apparent ambiguity is resolved when it is understood that the title which is the evidence- of ownership is joint but that the legal consequence is that each has a separate estate or interest. Collier v. Collier, 73 Ariz. 405, 411-412, 242 P.2d 537, 541 (1952).

We conclude that the amendment is a procedural device which permits the court to settle- all rights in the property of the parties to the divorce in one action, and find nothing in the language of the amendment which gives the Superior Court the authority to divide as seems just and right jointly held property.

. Nor do we find anything in the language of Nace v. Nace, 104 Ariz. 20, 448 P.2d 76 (1968), relied on by the court in Needel v. Needel, supra, to ‘ suggest the contrary. Nace was a case of an asserted commingling of separate property with community which the wife urged destroyed its identity as the husband’s separate estate. We said:

“The issue before this Court is whether the trial court made a proper division of the community property. In deciding this question, the trial court first had to determine what was separate property and what was community property, and then make an equitable distribution of the community property.” 104 Ariz. at 22, 448 P.2d at 78. (Emphasis supplied.)

We found that the facts supported the husband’s claim that the commingling was not sufficient to stamp the whole of his property with community status and held that the division of the community property by the trial court was just and equitable. So much of the opinion in Needel v. Needel, 15 Ariz.App. 471, 489 P.2d 729 (1971) as is contrary to the views herein set forth is expressly disapproved.

We find no merit in the assertion that the court erred in failing to grant a new trial on the grounds of newly discovered evidence.

Since we have concluded that the court erred in setting aside to the plaintiff, Domenic Becchelli, the property we have herein discussed as his sole and separate property, and since there may be other property which is affected by this decision and by the decision in O’Hair v. O’Hair, 109 Ariz. 236, 508 P.2d 66 (1973), the court below is directed to vacate its judgment except insofar as that part granting to Domenic Becchelli a divorce, and is further directed to reconsider all of the property interests, both separate and community, of the parties and upon doing so to enter an appropriate judgment in accordance with views expressed herewith.

CAMERON, V. C. J,, and LOCKWOOD, J., concur.