Nelson v. Nelson

560 P.2d 1276, 114 Ariz. 369, 1977 Ariz. App. LEXIS 509
CourtCourt of Appeals of Arizona
DecidedJanuary 28, 1977
Docket2 CA-CIV 2228
StatusPublished
Cited by22 cases

This text of 560 P.2d 1276 (Nelson v. Nelson) 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
Nelson v. Nelson, 560 P.2d 1276, 114 Ariz. 369, 1977 Ariz. App. LEXIS 509 (Ark. Ct. App. 1977).

Opinion

OPINION

HOWARD, Chief Judge.

Lou Ellen Nelson, appellant, and Leonard H. Nelson, appellee, were married on November 19, 1971. Prior to the marriage, appellant earned $550 a month as a bookkeeper and received'a $245 monthly pension payment from the death of her first husband. Upon her marriage, appellant lost her rights to the pension but received a lump sum settlement of approximately $5,000. She also gave up her job. Appellee was employed during the marriage as president and manager of Oliver’s Cleaners, Inc., a corporation in which he owned 20,000 shares of stock as his separate property. The couple acquired a new home valued at $54,000 to $60,000 which was subject to a mortgage of approximately $39,000 at the time of trial.

The Nelsons separated in February of 1973 and the marriage was dissolved on February 5, 1976. The court awarded appellant her car, income from a second mortgage on a residence, and some shares of stock, all of which were her separate property; $4,250 in cash for her share of the community property; spousal maintenance of $400 a month for six months; and a one-half interest as cotenant in the Nelson home. The court further ordered appellee to pay attorney’s fees and costs of $1,500 *371 but denied appellant’s request for an award of fees and costs for appeal.

On appeal, appellant claims the trial court (1) erred in its division of the property; (2) abused its discretion in awarding inadequate maintenance and support; and (3) abused its discretion in awarding only $1,500 in attorney’s fees for expenses through trial and in failing to award attorney’s fees for appeal.

Appellant first questions certain aspects of the division of property. Initially, she argues that the profits from appellee’s share of the stock in Oliver’s Cleaners, Inc. should be considered community property. Appellant points out that Oliver’s qualifies for special treatment as a Subchapter S corporation for federal income tax purposes and therefore the profits are distributed and taxed directly to shareholders as ordinary income. She also notes, however, that Arizona does not recognize Subchapter S corporations so that the profits are taxed to the corporation and passed on to shareholders as dividends. In any event, the treatment which income receives for tax purposes is not determinative of whether the property is community or separate. Cf. Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948).

In Arizona, the general rule is that profits from separate property acquired during marriage remain separate property. A.R.S. § 25-213. However, in some instances the general rule is modified and profits become community property. Under the test long established by our courts, the profits of a business are either community or separate in accordance with whether they are the result of the individual toil and application of the spouse or the inherent qualities of the business itself. Rundle v. Winters, 38 Ariz. 239, 298 P. 929 (1931).

Although the test has been applied in many different cases, none directly addresses the question of whether profits from a corporation in which the spouse holds stock as his separate property and by which the spouse is employed as a president-manager are community or separate property. In Anderson v. Anderson, 65 Ariz. 184, 177 P.2d 227 (1947), the court stated that the success of the clothes cleaning business was due to the management and individual toil of the spouse and therefore held that the earnings of the business were community property. However, the business in that case was apparently a sole proprietorship and there was no indication the husband received a specific salary for his work. In Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459 (1951) where the husband was a partner in a general merchandise store in a small town, and in Evans v. Evans, 79 Ariz. 284, 288 P.2d 775 (1955) where the husband was a partner in a restaurant, the court rejected the idea that the salary account of a partner is in every instance the extent of the contribution of the community. In contrast, in Lincoln Fire Insurance Company v. Barnes, 53 Ariz. 264, 88 P.2d 533 (1939) where a husband and wife operated a hotel owned by the wife as separate property, the court held that the earnings of the hotel remained the wife’s separate property because the spouses were paid for their services by a salary and drawing account and the community was therefore fully compensated. The court found that the profits in excess of their reimbursements derived from the inherent nature of the business itself. And in Porter v. Porter, supra, the court held that corporate dividends remained the husband’s separate property where he owned one third of the stock of the corporation but was not active in the management of the business.

In the present case, the appellee originally owned Vio of the stock of Oliver’s Cleaners, Inc. and now owns Vk He received a salary of approximately $26,000 a year as corporate president and manager. We conclude that the evidence sustained the trial court’s findings that the salary paid to appellee was sufficient to fully and fairly compensate the community for his services and that the dividends were paid as a return on investment and were not community property. Lincoln Fire Insurance *372 Co. v. Barnes, supra. See also, Gilmore v. Gilmore, 45 Cal.2d 142, 287 P.2d 769 (1955); Hamlin v. Merlino, 44 Wash.2d 851, 272 P.2d 125 (1954); Katson v. Katson, 43 N.M. 214, 89 P.2d 524 (1939). We note in particular that all the shareholders received the same dividend whether or not employed by the corporation. Although the law in California differs somewhat from ours, language from Van Camp v. Van Camp, 53 Cal.App. 17, 199 P. 885, 889 (1921), a case involving similar facts, is appropriate here:

“While it may be true that the success of the corporation of which defendant was president and manager was to a large extent due to his capacity and ability, nevertheless without the investment of his and other capital in the corporation he could not have conducted the business; and while he devoted his energies and personal efforts to making it a success, he was by the corporation paid what the evidence shows was an adequate salary, and for which another than himself with equal capacity could have been secured.”

Appellant next claims that an increase in the value of Oliver’s Cleaners stock during the marriage is community property.

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Bluebook (online)
560 P.2d 1276, 114 Ariz. 369, 1977 Ariz. App. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-nelson-arizctapp-1977.