Porter v. Porter , 67 Ariz. 273 ( 1948 )

This couple was married on December 25, 1928. They have a daughter and son of the ages of approximately seventeen and fourteen years, respectively. They lived on a ranch in Laveen and built a home there. They lived in Tucson while he worked for the Porter Saddle Company. They also bought a home there, she looking after all of the details and making the first payment out of their own account in the Porter Company Store, which, however, was his money. They returned to Phoenix in 1940, and through Pearl Porter's efforts found a home which was purchased by them for $11,000 on the installment plan. There is still a balance due on it. The first payment was made from a joint account which he had with her in the bank, but he originally had supplied the account with his separate money. The contract for the purchase of this property was placed in the name of both husband and wife. He had often mentioned that property they acquired was part her property.

In the foregoing opinion, the case of Blaine v. Blaine was in part quoted. The opinion then has the statement: "This has been the law of Arizona since the decision in the two Woffenden v. Charauleau cases * * *. However, the above rule may be qualified, as enunciated in the case of Rundle v. Winters, 38 Ariz. 239,298 P. 929."

The majority opinion also says that the rule was further amplified in Re Torrey's Estate, supra. But the latest case we have which thoroughly goes into this matter is Blaine v. Blaine, supra [63 Ariz. 100, 159 P.2d 790]. From that case I quote:

"Where the claim is made that property purchased during the existence of a marriage is the separate property of one of the spouses, the fund with which such property was acquired must be clearly shown to have been the separate property of such spouse. No inference will be made against the community character or that the fund was separate, except under circumstances of a conclusive tendency. The presumption in favor of the community character of the property acquired during marriage may be overcome only by clear and cogent proof. (Citing cases.)

"When, as here, separate and community income and funds are commingled in one account and treated as community property without segregation, the entire amount ordinarily becomes community property. This rule is based upon the theory that the community interest is paramount and is especially applicable where, as in this case, the community funds constitute the major portion of the deposits. Rundle v. Winters, supra; 11 Am.Jur. 198, sec. 38.

* * * * * *

"We are not unmindful of the rule that where there is reasonable evidence to support the finding of the trial court, such finding will be upheld. We think that the statement made by the defendant five years after the purchase that he did not intend to vest any interest in this property to his wife, is not reasonable evidence within the rule. The overwhelming weight of the evidence is to the contrary. Since the defendant used his separate funds to purchase the property, unless he intended to make a gift to his wife of the one-half interest, there was no reason for him to include her in the deed. If deeds not involving trusteeships, executed and delivered in the joint names of parties and treated as their joint property for years, may be overturned simply on the testimony of one of the grantees, long subsequent to the execution of the instrument, that he did not intend the conveyance to operate as a grant to his co-grantee, no title would be safe. We cannot assent to such a rule. The defendant had the right to use this method in making a gift of one-half of the property to plaintiff. Jones v. Rigdon,32 Ariz. 286, 257 P. 639, 640: `Ordinarily, such a gift is evidenced by a conveyance from one to the other, but this is not the only method by which it is established. The fact that a husband causes or permits a conveyance to be made to his wife tends to show that it was the intention of the parties the property should be her separate estate.'

"In the case of Scott v. Currie, 7 Wash. 2d 301, 109 P.2d 526, it was held that where a husband purchases property in the name of the wife, paying for it from his separate funds, the inference to be drawn is that the husband intended to make a gift to his wife. In connection with such a transfer no resulting trust is created in favor of the husband. The wife is not deemed to hold the property for the use of the husband, but in her own right. (Citing cases.) 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. (Citing cases.) We accordingly hold that plaintiff is the owner under the evidence of a one-half interest in the Polk Street property."

Among the things that this plaintiff, Pearl Porter, needs is the security of a home. It was given to her by the trial court and now taken from her by the majority opinion herein. Where did the trial court get the idea that she should have the home if it were not from the evidence as a whole submitted before that court? At the time of the making of income tax returns, she testified that her husband told her, "He said that it was necessary for me to sign because when a man was married there was a state law whereby half of what a man had belonged to his wife and that I would have to sign in that capacity." It is not to be expected at the time of separation that he intended the marriage relation should be dissolved and she placed in a position where she hasn't a home after the surrender of these years of her life and the bearing of two excellent children. All of this I say, keeping in mind the rights under the State of Arizona for a spouse to retain his separate property and the accruments therefrom. However, much of this property was commingled, and evidently that was the basis on which the trial court gave unto her the home place in which she now resides.

Increasing monthly payments instead of awarding the home to the wife is unjust to her and a burden upon the husband. The law provides for an increase to her whenever the conditions at her home warrant same.

I believe in a liberal allowance of fees to attorneys for the wife now that the case is remanded, the same to be commensurate with the services rendered.