Porter v. Stanford , 86 Ariz. 402 ( 1959 )

PHELPS, Chief Justice.

The petitioners, Pearline Porter and Pauline P. Leonard, seek a writ of prohibition to restrain the respondent court and the Honorable R. C. Stanford, Jr., one of the judges thereof, from enforcing an order for the payment of support money to Gladys E. Porter from the assets of property which petitioners allege to be partnership property. Following informal hearing alternative writ issued.

The facts are that on February 13, 1959, Gladys E. Porter commenced an action for separate maintenance against her nonresident husband, William Arnold Porter, in the superior court of Maricopa County. The complaint described the Arizona Hotel property and alleged that it was the community property of the parties. Part of the relief asked by Mrs. Porter was that the court set aside a certain amount of the income from the Arizona Hotel to her for the support of herself and the minor children of the parties, and for the payment of attorneys’ fees and court costs. Having perfected service upon her husband by publication, Mrs. Porter caused a writ of attachment to be levied by the sheriff upon the Arizona Hotel, February 17, 1959.

Thereafter, Pearline Porter and Pauline P. Leonard filed a motion to intervene, claiming an interest in the Arizona Hotel property. That motion being granted they filed their complaint in intervention February 25, 1959. By their complaint the petitioners (interveners Pearline Porter and Pauline P. Leonard hereafter referred to as petitioners) alleged that the Hotel property in question was not the community property of the Porters but was in fact the property of a partnership known as the Continental Hotel System; that William Arnold Porter was a copartner with them in that partnership; that Mrs. Porter’s claim was not a claim against the partnership nor a claim against any specific partnership property; and that the attachment levied upon the property in question, therefore, did not create a valid lien in favor of Mrs. Porter. For relief, the petitioners asked that the attachment be removed and discharged.

By her answer to the petitioners’ complaint filed March 31, 1959, Gladys Porter denied that any such partnership existed and alleged that the Arizona Hotel is not partnership property but the community property of herself and her husband; alleged that her attachment was lawful; and admitted that her claim is not against any partnership.

Thereafter, on April 14, 1959, the court upon the motion of Gladys Porter made and entered its order appointing one M. E. Eu-bank as receiver of the Arizona Hotel property with the powers and duties of taking charge of managing and conserving it. Mr. Eubank qualified, posted bond and became the receiver on April 24, 1959.

On April 24, 1959, the court issued an order to Mr. Eubank to appear on May 8, 1959, to show cause why he should not pay Gladys Porter $3,000 per month for her support and the support of the three minor children, together with $5,000 as attorneys’ fees pendente lite from the Hotel’s proceeds. May 6, 1959, interveners moved the court to quash the order to show cause.

A decree of separate maintenance was made and entered May 14, 1959. By such decree the court ordered and adjudged that Mrs. Porter is authorized to live separate and apart from her husband; that she receive $3,000 per month support and maintenance ; that she have the care, custody, control and education of the minor children of the parties; that the attorneys’ fees be fixed at $15,000; that she have a lien on all the community property for support under a pendente lite order in the sum together with attorneys’ fees in the sum of $5,000 and court costs pendente lite; that any community interest of the parties in the Arizona Hotel be charged with the payment of the support to plaintiff; that the lien for payments pendente lite is to affix to any community interest in the Arizona Hotel; that she is to receive $10,000 for attorneys’ fees and costs expended in this action. of $10,200,

Petitioners’ motion to quash having been denied, hearings on the order to show cause were held on the following dates respectively: May 15, 1959; May 28, 1959; June 12, 1959; June 19, 1959 and June 26, 1959. During the June 19th proceedings the court made an order the pertinent parts of which follow:

“Therefore, it is ordered that the interest of William Arnold Porter in the Arizona Hotel be charged with the payment of the support and maintenance of Gladys E. Porter, and the minor children, * * * and the payment of attorney’s fees * * * as heretofore ordered by this Court, in the Decree of Separate Maintenance. * * * It is further ordered that until the issue of whether the Plaintiff and Defendant are the sole owners of the Arizona Hotel, or are partners with the Interveners, Pearline Porter and Pauline P. Leonard, the Receiver, Mr. Eubank, shall pay to said Gladys E. Porter towards the support for herself and the minor children the sum of $1,000 per month * * * on the first day of each month, commencing on the first day of luly, 1959, and on the first day of each month thereafter until a further Order of the Court.” (Emphasis added.)

The petitioners assert two grounds upon which this court should issue a writ of prohibition against the trial court. First, that the court was without jurisdiction to issue the order to show cause to Mr. Eubank as receiver of the Arizona Hotel. And second, that the court acted in excess of its jurisdiction in ordering him to make the payments in question pending the determination of the ownership of the Hotel property.

Petitioners raise the question of the jurisdiction of the court to issue the order to show cause directed at the receiver of the Arizona Hotel property appointed by the court in the separate maintenance action in which Gladys E. Porter was plaintiff and William Arnold Porter was defendant, and in which petitioners intervened as parties plaintiffs. Suffice it to say that said order to show cause was entirely superfluous.

We said in Sawyer v. Ellis, 37 Ariz. 443, 448, 295 P. 322, 324, that

“ * * * Generally speaking, he (the receiver) is not an agent of any of the parties, but is merely a ministerial officer of the court. He stands in an indifferent attitude, not representing either the owners of the insolvent estate or the creditors, but really representing the court in acting under its direction, for the benefit of all the parties in interest. The parties to the litigation have not the least authority over him, nor have they the right to determine what liability he may or may not incur; his authority is derived solely from the act of the court appointing him, and he is the subject of its order only. * * * ” Citing authority.

The court in the above case held that the court in a bank liquidation case has substantially the same power over the receiver as it had over a receiver in the ordinary insolvency case. The court in the instant case after due hearing had, entered insofar as here pertinent, the following order:

“ * * * It is further ordered that until the issue of whether the Plaintiff and Defendant are the sole owners of the Arizona Hotel, or are partners with the Interveners, Pearline Porter and Pauline P. Leonard, the Receiver, Mr. Eubank, shall pay to said Gladys E. Porter towards the support for herself and the minor children the sum of $1,-000 per month * * * on the first day of each month, commencing on the first day of July, 1959, and on the first day of each month thereafter until a further Order of the Court.”

It will be seen from what has been said above that the court had already fixed the sum of $3,000 per month for the support of Gladys E. Porter and the minor children of her and the defendant William Arnold Porter pendente lite, and for costs of court and attorneys fees of $5,000. It had jurisdiction of the parties and of the subject matter of the litigation and jurisdiction to enter an order in such amount as it deemed proper for their support pendente lite. The-records show that several hearings were held pursuant to the order to show cause complained of above, and the amount was reduced to $1,000 as above shown.

The court likewise had jurisdiction to temporarily reduce the amount from $3,000 per month to $1,000 if the circumstances developed by the evidence warranted it. A.R.S. § 25-315 and A.R.S. § 25-321. It also had authority not only to order the husband to pay such amount pendente lite but it also had authority to direct a receiver of the community property to do so. Nichols v. Superior Court, 1 Cal.2d 589, 36 P.2d 380, 95 A.L.R. 894; Atkinson v. Superior Court, Cal.App., 310 P.2d 145, and Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L.R.A. 626.

The second contention of interveners is equally as untenable as the first. The complaint of Gladys E. Porter v. William Arnold Porter is duly verified in the manner prescribed by statute and it alleges that plaintiff and defendant own as community property “Lots 1, 3 and S of Block 74, Original Townsite of Phoenix, according to the map and plat of record in the office of the County Recorder of Maricopa County, Arizona.” This constitutes a legal description of the property upon which the Arizona Hotel is located. There was no answer to this complaint by defendant William Arnold Porter. The court in its decree found all of the material allegations of the complaint to be true. Therefore, insofar as he is concerned the issues therein determined are res judicata. The answer to petitioners’ application for a writ of prohibition alleges that the deed of conveyance to this property to William A. Porter and Gladys E. Porter was recorded on July 9, 1948, in the office of the county recorder of Maricopa County, Arizona, in docket 241 at page 311 thereof. This allegation stands undenied. So far as the record before us is concerned there is no proof either that the property involved is not the community property of Gladys E. Porter and. her husband or that it is the property of a partnership. The presumption that it is community property therefore obtains and will continue to prevail in favor of Gladys E. Porter until it is destroyed by evidence to the contrary.

The court had jurisdiction therefore both to fix her support at $3,000 and to reduce to $1,000 temporarily if it deemed such action proper.

The alternative writ of prohibition was improvidently issued and it is therefore ordered quashed.

STRUCKMEYER, UDALL, and BERNSTEIN, JJ., concurring.