Kelly v. Kelly , 24 Ariz. App. 582 ( 1975 )

24 Ariz. App. 582 (1975) 540 P.2d 201

Rosemary C. KELLY, Appellant,
v.
Charles M. KELLY, Appellee.

No. 2 CA-CIV 1860.

Court of Appeals of Arizona, Division 2.

September 30, 1975.

Christoffel & Brown by Dean C. Christoffel, Tucson, for appellant.

Lieberthal & Kashman, P.C., by David H. Lieberthal, Tucson, for appellee.

OPINION

HOWARD, Chief Judge.

In this appeal from a decree of divorce, appellant questions the award of the home and custody of the minor children to appellee, her former spouse.

In her pleadings appellant described the home as community property. At trial appellee testified that the house was held in joint tenancy with right of survivorship. Appellant's counsel at trial raised the jurisdiction of the court relative to the home but did not offer the deed in evidence, nor was there any testimony that the parties accepted a deed to the home as joint tenants with right of survivorship and not as community property.

In her motion for a new trial, the wife disputed the award of the home to the husband and attached a copy of the deed showing proper acceptance by the parties. The court denied the motion.

At the time of trial, the court had no jurisdiction to make an equitable award of joint tenancy property. Becchelli v. Becchelli, 109 Ariz. 229, 508 P.2d 59 (1973). The evidence at trial did not establish that the home was held in joint tenancy. DeMarce v. DeMarce, 101 Ariz. 369, 419 P.2d 726 (1966). However, lack of jurisdiction over the subject matter can be raised at any time, Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403 (1961), and the parties cannot by consent give the court jurisdiction over subject matter which it would not otherwise have. Porter v. Porter, 101 Ariz. 131, 416 P.2d 564 (1966); Rodieck v. Rodieck, 9 Ariz. App. 213, 450 P.2d 725 (1969). The trial court erred in not granting a new trial on the issue of the status of the home.

The custody of the minor children was hotly contested. An investigation was conducted by a court social worker pursuant to A.R.S. Sec. 25-335. The evidence shows that the trial court did not err in awarding custody of the minor children to appellee.

That part of the judgment awarding appellee the home, Lot 13, Block 5, of Mission Terrace, is reversed and the judgment is affirmed in all other respects.

KRUCKER and HATHAWAY, JJ., concur.