Hofstra v. Hofstra

474 P.2d 869, 13 Ariz. App. 150, 1970 Ariz. App. LEXIS 775
CourtCourt of Appeals of Arizona
DecidedSeptember 29, 1970
DocketNo. 1 CA-CIV 1185
StatusPublished
Cited by1 cases

This text of 474 P.2d 869 (Hofstra v. Hofstra) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hofstra v. Hofstra, 474 P.2d 869, 13 Ariz. App. 150, 1970 Ariz. App. LEXIS 775 (Ark. Ct. App. 1970).

Opinion

STEVENS, Judge.

The husband was the plaintiff in an action seeking an absolute divorce. The divorce was granted to him. He appeals from certain of the monetary aspects of the decree. The wife filed a counterclaim for a decree of separate maintenance and does not appeal from the denial thereof or from any portion of the decree which was entered at the conclusion of the litigation.

The husband presents three questions on appeal which we quote as follows:

“I. Did the Court divide the community property in an equitable manner?
“II. Did the Court divest the husband of his title to separate property?
“III. Is the amount ordered by the Court for alimony and child support so excessive as to constitute an abuse of judicial discretion ? ”

In view of the limited issues which are presented to this Court there are many facets of this case which will not be discussed in this opinion.

The husband and the wife grew up in New Jersey and had known each other as young people. Their families were friends. They were married in 1949 before the husband completed his education. For a time the wife worked. After the husband’s admission to the practice of law in New Jersey, he was associated with his father in the practice of his profession. While in New Jersey he was given certain stocks and purchased certain stocks. He dealt in real estate to some extent.

The parties moved to Arizona, arriving in and settling in Prescott in August 1958. At that time the wife had few monetary assets and to all intents and purposes the monetary assets of the couple were the sole and separate property of the husband. The husband did not seek to follow the practice of law in Arizona. He engaged himself in business and in ranching.

Three children were born of the marriage in New Jersey and four children were born of the marriage in Arizona. The first child was born on 16 June 1952 and the youngest child was born on 19 February 1967.

The husband moved out of the family home on 10 September 1967 and the divorce action was filed on 4 December of the same year. The action was tried with an advisory jury in November 1968.

During the course of the marriage the wife acquired stocks of a value of approximately $40,000. These were acquired largely by gift.

During the course of the marriage the value of the husband’s stocks appreciated materially. The major holdings were in a bank, the stock of which was sold over the counter to a limited market composed of a limited few in that not too many persons knew of or were interested in buying this particular stock. Some of the wife’s assets were shares of stock in the same bank.

The wife does not contest the assets decreed to the husband. The contest as to the property is presented by the husband. There are four pieces of real property. These are the home on Arroyo Drive; the Coyote Springs Ranch; the Harbeson portion of the Copper Canyon Ranch; and the Sasser portion of the Copper Canyon Ranch. At the time of the entry of the decree of the divorce each of the properties was subject to a separate mortgage.

The husband testified:

“ * * * I diligently kept my property separate from community property,

Reviewing the financial assets of the parties and the testimony presented at the trial leaves little doubt that the sale of the husband’s sole and separate property or loans secured by the pledge of his sole and separate property were the major sources of funds for investment. The husband’s earnings in Arizona did not reach the point of a sufficient return to support the family, much less enough to take care of the necessary payments on capital investment and interest. While the husband, in his own mind, may have diligently kept his property separate from community this was not [152]*152clearly communicated to the wife, at least not at the time of investment.

THE HOME

The date of the acquisition of the home and the manner in which title was taken is not reflected in the record. At the time of trial the property had an estimated value of $35,000 to $37,000 subject to a $7,000 mortgage. At all times during the trial this property was conceded by the husband to be community property. The home was awarded to the wife “free and clear from any liens and encumbrances,” thus casting the burden of the payment of the mortgage upon the husband. Though contested in the trial court, this portion of the decree casting the burden of payment upon the husband is not contested before this Court. The award of the home is considered by the husband on the appeal only in relation to the overall distribution of the property.

COYOTE ' SPRINGS RANCH

Other than alimony and child support, which are treated later in this opinion, the Coyote Springs Ranch is the major issue before this Court.

In connection with this phase of the financial picture it is necessary to digress a bit. The husband testified that on 1 November 1958 he invested in a business known as the Yavapai Block Company. He testified that in making the investment he used borrowed and separate funds. According to the husband’s testimony the wife “had no interest of record” in the company. The Hofstra interest in the company was sold in December 1966 and on the 23rd day of that month the husband wrote a check in favor of the wife for one-half of the proceeds of the sale, namely the sum of $41,832.50. The husband described this as a gift to the wife. The husband retained a like sum.

The Coyote Springs Ranch at the time of purchase consisted of patented land, state leases, a federal forest permit and some livestock. The ranch was purchased in January 1966. In connection with this property we find the following question and answer as a part of the husband’s direct examination.

“Q. Okay. We had just begun to discuss the Coyote Springs Ranch before the noon recess. I think this is the property that you believe to be community property owned by both you and your wife, Margery; is that correct?
“A. Yes, sir.”

The deed is not in evidence and we assume from the foregoing question and answer and from the conclusion of the trial court hereinafter quoted that the deed named the husband and wife as the grantees. There is no evidence that at the time of acquisition there was a declared intention by the husband that he reserved as his sole and separate property the value of any cash investment.

Using only round figures, the evidence indicates that the overall purchase pric.e was $340,000. The husband borrowed $125,000 pledging his stock as security. $120,000 thereof was used as a down payment and the balance was placed in a bank account for operating expenses in connection with the ranch. In January 1967, in addition to an interest payment, the further sum of $80,000 was paid in principal. The more than $40,000 which the wife had received in connection with the sale of the family interest in the Yavapai Block Company was utilized in putting together the $80,000 principal payment. In December 1967 livestock was sold and the forest permit was sold making it possible to further reduce the unpaid principal balance by an additional $80,000, leaving the unpaid principal balance at the time of trial in the sum of $60,000. This sum was due on 15 March 1969, a very few months after the trial.

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Bluebook (online)
474 P.2d 869, 13 Ariz. App. 150, 1970 Ariz. App. LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hofstra-v-hofstra-arizctapp-1970.