Nesmith v. Nesmith

Citations: 540 P.2d 1229; 112 Ariz. 248; 1975 Ariz. LEXIS 365Docket: 11736

Court: Arizona Supreme Court; October 8, 1975; Arizona; State Supreme Court

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Evelyn H. Nesmith appealed a divorce decree from the Superior Court of Mohave County, challenging several aspects of the trial court's decisions. Key issues included: 

1. The appropriateness of granting a Brown Decree divorce.
2. The denial of Evelyn's request for an inventory and appraisal of marital property during the trial.
3. Allegations of fraud based on references to an allegedly unpaid judgment, which evidence indicated had been satisfied prior to trial.
4. The trial court's division of marital property, the lack of alimony, and the denial of attorney's fees, which Evelyn argued constituted an abuse of discretion.

The divorce proceedings began when Thomas D. Nesmith filed for divorce on September 10, 1971, alleging desertion. Evelyn counterclaimed for divorce citing cruel treatment. Throughout the trial on June 19, 1972, references were made to a $1,200 judgment against both parties, later proven to have been satisfied. The court granted a Brown Decree divorce without specifying to whom it was awarded, dividing their property with Evelyn receiving property in Illinois and Thomas receiving property in Arizona, while he assumed marital debts. 

Evelyn subsequently filed multiple motions for relief, including a writ of coram nobis and requests for accounting and injunctions regarding community property, all of which were denied. Following an appellate court's revesting of jurisdiction, a new judgment was issued on October 5, 1973, dividing property equally and holding both parties liable for debts. The Brown Decree was governed by the statute in effect before the introduction of 'no fault' divorce laws, which required both parties to request a divorce and present corroborating evidence of grounds for divorce.

Corroboration in divorce proceedings aims to prevent collusion; in contested cases without evidence of collusion, only slight corroboration is needed. Admission by the other party can serve as corroboration. Evelyn is entitled to a divorce, but Thomas allegedly failed to provide sufficient evidence for a decree on the basis of desertion. Testimony reveals that Evelyn expressed dissatisfaction with their financial situation and left the family home around New Year's in 1969, corroborated by their son and Thomas's witness. Evelyn admitted to leaving due to unhappiness. The trial judge found adequate evidence that Evelyn deserted Thomas for over a year, satisfying statutory requirements. Evelyn's counsel argues that Thomas needed to show he attempted reconciliation. Arizona law defines desertion as a voluntary separation without consent, requiring that the deserted spouse actively seek to reconcile. Previous cases emphasize that consent to separation negates grounds for divorce based on desertion unless the consent is revoked and reconciliation is attempted.

In Frankel v. Frankel, the court determined that a plaintiff seeking a divorce based on desertion must demonstrate an attempt at reconciliation if they consented to the separation, while the deserted party is not required to attempt reconciliation. The trial court's decision to grant a divorce was upheld. The court also addressed a request for an inventory and appraisal of community property, which was deemed untimely since it was made only at trial; therefore, the court's denial was appropriate. Evelyn, the appellant, conceded that the judgment on remand accurately reflected the marital property and did not claim harm from the lack of a receiver's appointment.

Regarding the Craig judgment, Evelyn alleged that non-disclosure of payment constituted fraud, but the court found no resulting prejudice, as this information was known to all parties during the remand. The division of substantial marital property was contested, and although Evelyn argued that the original trial was fundamentally unfair, the court noted that the division of joint tenancy property should be equal and community property division is determined by what the court finds just. The trial court has broad discretion in property distribution, and only clear abuse of that discretion warrants appellate intervention. The judgment on remand maintained this division method, giving each party an undivided half-interest in the property. While the court acknowledged the potential for mismanagement and friction from this approach, it did not constitute an abuse of discretion, and the judgment was affirmed.