holding the inclusion of wife’s name on notes, mortgages, and contracts relating to the purchase of real property with husband’s separate funds did not transmute the separate property to community property because no evidence demonstrated “that the insertion of the wife’s name in the conveyances was by the direction of the husband”
How later courts described this case
- holding the inclusion of wife’s name on notes, mortgages, and contracts relating to the purchase of real property with husband’s separate funds did not transmute the separate property to community property because no evidence demonstrated “that the insertion of the wife’s name in the conveyances was by the direction of the husband”
- reversing a trial court’s finding that marital property existed because no substantial evidence supported the finding
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Cockrill v. Cockrill, 124 Ariz. 50 (1979)
67 Ariz. 273, 281 (1948), overruled in part on other grounds by Cockrill v. Cockrill, 124 Ariz. 50, 53-54
The opinion
UDALL, Justice
(specially concurring).
It is with some misgiving in regard to the disposition of the home that I concur in the opinion of Judge THOMAS and yet I do not believe that the record supports any other conclusion. Separate property of a man retains its character as such after his marriage if it can always be separately traced and separately identified. And though every presumption operates strongly, as it should, in the direction and favor of the community, legal presumptions were never intended to supersede known fact. Nothing in this record supports the view that the home ever became community property. According to law it acquired its .status at the time of its acquisition. It was bought with defendant’s separate funds. And property retains the status it had at the time of acquisition unless and until it is changed by agreement of the parties or the operation of law. Most of the statements made by defendant -as to plaintiff’s interest in his property were made before marriage, at tax time, etc., and if they were of a nature to be taken seriously, would apply with equal weight to all of defendant’s separate property of every nature whatsoever. But they did not so impress the trial court and, thus far, we respect its findings. The fact that the deed and mortgage on the home were in the name of both husband and wife is significant more of business custom than of anything else under the facts here at hand. The troublesome moral contradiction in our community property law that is evidenced in this case is that a man living in great part upon property acquired by inheritance fares better when successfully sued for divorce than a man who has proved his ability to make his own way. But this is the law, and it is for the legislature and not this court to change it.