This action for divorce was brought by Martha Kathryn O'Hair, plaintiff in the lower court, against her husband, Huston Harding O'Hair. Judgment was entered in the Superior Court granting to plaintiff a divorce, but denying an award for alimony. The Judgment also disposed of certain property asserted to be the separate property of the husband, granted support for the two minor children of $100.00 a month each, and denied any support for an adult handicapped daughter. The Court of Appeals reversed, 16 Ariz.App. 565, 494 P.2d 765 (1972). Opinion of the Court of Appeals vacated. Judgment of the Superior Court affirmed.
The parties to this divorce action were married in 1947 in Phoenix, Arizona, and
The trial court found that the $100,000.00 was the separate property of the defendant and entered a judgment favorable to him, pursuant to the authority of A.R.S. § 25-318, providing that neither party shall be divested of his separate property in a divorce action.
It is settled in Arizona that where a person deposits money in a bank to the credit of himself and another, payable to the order of either, or the survivor of them, such deposit vests in the other a joint interest with the depositor in the fund. Any question as to the extent of the other's interest is determined from the intention of the depositor — whether a gift was intended or whether the joint tenancy transaction was entered into for other purposes. Saylor v. Southern Arizona Bank and Trust Company, 8 Ariz.App. 368, 446 P.2d 474 (1968); Phoenix Title & Trust v. King, 58 Ariz. 477, 121 P.2d 429 (1942); McNabb v. Fisher, 38 Ariz. 288, 299 P. 679 (1931). In this, Arizona follows the general rule in the United States where not otherwise changed by statute. See, e.g., Harrington v. Emmerman, 88 U.S.App.D.C. 23, 186 F.2d 757 (1950); Juraitis v. Andriulis, 318 Mass. 782, 64 N.E.2d 701 (1945); Erickson v. Kalman, 291 Minn. 41, 189 N.W.2d 381 (1971); Tucker v. Tucker, 252 Miss. 344, 173 So.2d 405 (1965); Clabbey v. First National Bank, 320 S.W.2d 738 (Mo. App. 1959); Esposito v. Palovick, 29 N.J.Super. 3, 101 A.2d 568 (1953); Laurent v. Williamsburgh Savings Bank, 28 Misc.2d 140, 137 N.Y.S.2d 750 (1954); In re Berzel's Estate, 101 N.W.2d 557 (N.D. 1960); Wynne v. Wynne, 69 R.I. 229, 33 A.2d 173 (1943); Quesenberry v. Funk, 203 Va. 619, 125 S.E.2d 869 (1962).
While as between the bank and the depositor the contract of deposit is conclusive, the mere form of the bank account is not regarded as sufficient to establish the intent of the depositor to give another a joint interest in or ownership of the deposit. Bolton v. Bolton, 306 Ill. 473, 138 N.E. 158 (1923); Ball v. Forbes, 314 Mass. 200, 49 N.E.2d 898 (1943); Hodgins v. Zabel, 7 Misc.2d 484, 166 N.Y.S.2d 135 (Sup.Ct. 1957); Industrial Trust Co. v. Taylor, 69 R.I. 62, 30 A.2d 853 (1943). As the court said in Cashman v. Mason, 72 F.Supp. 487, 492 (D.Minn. 1947):
"[T]he intention of the depositor is controlling." McNabb v. Fisher, supra, 38 Ariz. at 295, 299 P. at 681.
The trial court found that appellee "did not intend at any time to change the character as sole and separate property of the funds which were deposited by him at Western Savings and Loan Association." This
Defendant's testimony tends to suggest that this was their understanding. She was asked this question:
Both plaintiff and defendant made withdrawals from the account. Her withdrawals were usually deposited to the parties' joint checking account from which household and living expenses were paid. However, in September, 1969, a year after opening the account, Mrs. O'Hair withdrew the $75,000.00.
A bank account opened or carried in the name of two or more persons is in their joint custody. Joint custody of an account is a fact which, in itself, negatives any idea of a gift, In re Betts' Estate, 122 N.Y.S.2d 234, 235-236 (Sur. 1953), since the essential element of a gift of personal property requires an intent on the part of the donor to divest himself of all dominion and control. In Rasmussen v. Oshkosh Savings & Loan Ass'n, 35 Wis.2d 605, 608, 151 N.W.2d 730, 732 (1967), the court, when speaking of a savings account placed in a wife's name, said:
The essential elements of a gift inter vivos are that the donor manifest a clear intent to give to the party claiming as donee, and give to the latter before death, full possession and control of the property. Goff v. Guyton, 86 Ariz. 349, 346 P.2d 286 (1959). There must be a donative intent, delivery, and a vesting of irrevocable title upon such delivery. Armer v. Armer, 105 Ariz. 284, 463 P.2d 818 (1970).
Thereafter, the Illinois court examined many of the decisions in the State of Illinois,
The testimony in this case is sufficient to support the trial court's finding that defendant did not intend to change the character of his funds which were deposited by him in the Western Savings and Loan as his sole and separate property.
No principles are better settled in Arizona than, first, that the duty of a reviewing court begins and ends with the inquiry whether the trial court had before it evidence which might reasonably support its action viewed in the light most favorable to sustaining the findings, and, second, that the reviewing court will not weigh conflicting evidence on appeal. Hollis v. Industrial Commission, 94 Ariz. 113, 382 P.2d 226 (1963); Nash v. Goor, 94 Ariz. 316, 383 P.2d 871 (1963); Jackson v. Clintsman, 91 Ariz. 314, 372 P.2d 204 (1962); Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960); Hurst v. Hurst, 86 Ariz. 242, 344 P.2d 1001 (1959); Odom v. First National Bank of Arizona, 85 Ariz. 238, 336 P.2d 141 (1959); Smith v. Connor, 87 Ariz. 6, 347 P.2d 568 (1959); Rightmire v. Sweat, 83 Ariz. 2, 315 P.2d 659 (1957); Gilliland v. Rodriquez, 77 Ariz. 163, 268 P.2d 334 (1954); Bank of Arizona v. Harrington, 74 Ariz. 297, 248 P.2d 859 (1952); Peters v. Macchiaroli, 74 Ariz. 62, 243 P.2d 777 (1952); Hamilton v. McDaniel, 71 Ariz. 371, 227 P.2d 755 (1951); Donahue v. Babbitt, 26 Ariz. 542, 227 P. 995 (1924); Stuart v. Norviel, 26 Ariz. 493, 226 P. 908 (1924); Grant Bros. Const. Co. v. United States, 13 Ariz. 388, 114 P. 955 (1911), aff'd, 232 U.S. 647, 34 S.Ct. 452, 58 L.Ed. 776 (1914).
The plaintiff is not in substantial disagreement with the principles announced to this point in the decision. The conclusion is therefore compelled that if the defendant did not intend to transfer a joint tenancy interest, with all of its legal implications, in the savings deposit and time deposit in Western Savings and Loan Association, the plaintiff did not acquire by gift in praesenti a one-half interest in the corpus of the deposit.
Plaintiff acknowledges this, for her ultimate position is that "what she actually received from defendant was not a sum of money or the gift of an undivided one-half interest in a sum of money, but the gift of right of control over the bank account." She quotes from and relies on the Montana case of State Board of Equalization v. Cole, 122 Mont. 9, 195 P.2d 989 (1948). Therein, the court said:
However, it is clear that as between the parties the right to exercise control over the deposit was not an unfettered and unrestricted right. The right of withdrawal by plaintiff was for the limited purposes of household or necessary living expenses and a withdrawal for any other purpose without the specific consent of the defendant is a wrongful appropriation of the defendant's separate property, which the court had the power in complete disposition
The plaintiff also complains of the failure of the court to award her alimony. She points out that she was 49 years of age and that she had been supported by the defendant all during her marriage, and that she had no formal training or education.
The defendant, on the other hand, argues that the court found the plaintiff to be able-bodied and in good health; that he is unable to support either himself or others, but that the court did provide support for the minor children of the parties; that that the court awarded the family residence to the plaintiff, which had an equity value of $30,000.00, the household furnishings and furniture of the value of $5,000.00, the sums then on deposit at the Valley National Bank and the United Bank of Arizona, together with a 1968 Buick automobile and a 1967 Triumph automobile. In addition, the decree gave to the plaintiff $7,893.86, of which $3,893.86 was for various sums owed by plaintiff for bills, etc.
Aside from his separate property, the defendant only received from the community estate certain tools and equipment from his home workshop of a value of $1,000.00 and a 1966 Buick automobile then in his possession. It is apparent there is a vast disparity between the value of the community property awarded to the plaintiff as against the value of the property awarded to defendant. In Cummings v. Lockwood, 84 Ariz. 335, 337, 327 P.2d 1012, 1014 (1958), we laid down the test that the awarding of support and maintenance for the wife is addressed to the sound discretion of the trial court and this Court will not interfere with such discretion unless it is clear that some injustice has been done. Finding no abuse of discretion, the award of the Superior Court in this respect is affirmed.
Finally, the plaintiff complains of the failure of the trial court to provide support for the parties' blind and mentally defective daughter after her twenty-first birthday. As to this, we noted in Genda v. Superior Court, 103 Ariz. 240, 243, 439 P.2d 811, 814 (1968), the general rule that a court in a divorce suit is without power to provide for the support of an adult child of the parties. We also said that where the adult child is physically and mentally incapacitated to provide for his own maintenance, the authorities consistently hold that in a divorce action there is no authority to provide for such adult child's support in the absence of contract or statutory authority. In Arizona, the statute conferring jurisdiction to order support, A.R.S. § 25-319, subsec. A, provides that in a final judgment of divorce a husband may be directed to pay such amounts as are necessary for the support and maintenance of his minor children only.
We therefore hold that the Superior Court was without jurisdiction to provide for the support and maintenance of the adult child.
Pending the appeal by Martha Kathryn O'Hair, the defendant petitioned the Superior Court to modify the child support provisions of the divorce decree on the grounds that the children's circumstances had changed since the entry of judgment. The Superior Court declined to consider in part defendant's petition. Defendant urges in this Court that the Superior Court did not lose jurisdiction to modify those portions of the decree which were not appealed by Martha Kathryn O'Hair.
Ordinarily, an inferior tribunal loses all jurisdiction in each and every matter connected with a case after an appeal has been perfected, except those matters in furtherance of the appeal. See, e.g., Whitfield Transportation, Inc. v. Brooks, 81 Ariz. 136, 141, 302 P.2d 526, 529 (1956). However, because the Legislature has provided, by A.R.S. § 25-321, that the Superior Court may from time to time after final judgment amend, change or alter any of the provisions respecting the care, custody or maintenance of children, we think it retains jurisdiction pending appeals in such matters, at least where
The judgment of the Superior Court in the appeal of Martha Kathryn O'Hair is affirmed; and the Order of the Superior Court in the appeal of Huston Harding O'Hair is set aside, with directions that the Superior Court proceed to a hearing and determination of his petition.
CAMERON, V.C.J., and LOCKWOOD, J., concur.
HOLOHAN, Justice (dissenting).
The journey of joint tenancy of personal property remains an uncharted course in Arizona law. A comparison of McNabb v. Fisher, 38 Ariz. 288, 299 P. 679 (1931); Phoenix Title & Trust Co. v. King, 58 Ariz. 477, 121 P.2d 429 (1942); and Brown v. Navarre, 64 Ariz. 262, 169 P.2d 85 (1946), illustrates the problems encountered in dealing with joint tenancy, and it appears that the law is anything but "well settled" on the subject. In a helpful annotation in 43 A.L.R.3d 971, some of the various rules developed by the courts from other jurisdictions are set forth. For the cases on the contract theory see 33 A.L.R. 2d 569. Interestingly enough, the jurisdiction which the majority has seen fit to quote at length, that is, Illinois, has held that in joint tenancy bank accounts with close relatives as the joint tenants there is a presumption of gift, and the burden is upon the party questioning the gift to establish that no gift was intended by clear and convincing proof. Frey v. Wubbena, 26 Ill.2d 62, 185 N.E.2d 850 (1962); Graves v. Graves, 42 Ill.App.2d 438, 192 N.E.2d 616 (1963). This position certainly seems to make good sense and logic that at least by reason of the relationship of the parties the establishment of a joint account indicates a gift.
In my view, the above rule should also apply to husband and wife as joint tenants. The author of the opinion of the Court of Appeals in this case, after analyzing the various theories on gift and joint tenancy, stated:
The foregoing position would be in harmony with our cases concerning real property and joint tenancy. The close relationship between husband and wife makes such a construction of their intentions more natural than the position by the majority which seems to treat them as strangers dealing at arm's length.
The position of the majority must be considered unsound from another and far more vital aspect. The Arizona Legislature has made special provisions for joint accounts in a savings and loan association:
The facts in this case clearly show that the principal sum in dispute by the parties involves the funds placed in the Western Savings and Loan Association. The evidence shows that the application by the parties which bears both their signatures contained the following language:
The reference in the majority opinion to A.R.S. § 6-267 is misplaced since this section deals with bank deposits — not deposits in savings and loan associations. It is true that the bank deposit section is a so-called "bank protection" section, but it must be conceded that its relevance is to questions concerning deposits in a bank. The legislature in 1960 saw fit to provide a separate savings and loan code, and the sections of that code are controlling on questions involving the nature and effect of accounts in such associations.
The effect of statutes similar to A.R.S. § 6-431 has not been the subject of uniform interpretation, usually due to the fact that a number of jurisdictions have an additional statute which provides for a conclusive presumption that an account in joint ownership with right of survivorship vests title to the deposits in the survivor. See 43 A.L.R.3d 1013, § 10. In jurisdictions without a statute creating the conclusive presumption, but with a statute similar to A.R.S. § 6-431, the courts have generally held that accounts established under such a statute create a presumption of joint ownership in the named parties, but the presumption is rebuttable. Green's Estate v. Meeker, 46 Wn.2d 637, 283 P.2d 989 (1955). See also: Frey v. Wubbena, supra; Jacques v. Jacques, 352 Mich. 127, 89 N.W.2d 451 (1958).
The courts interpreting sections similar to A.R.S. § 6-431 appear to be uniform in holding that the statute itself creates a method of holding personal property in joint tenancy, and it is not necessary that the common law elements of gift be established. The statute itself establishes a method of creating a form of ownership with right of survivorship in intangible property. It is the duty of the courts to acknowledge the statutory scheme creating such a method of holding property and give it full effect.
In the instant case legal title to the funds deposited in the Western Savings and Loan Association was vested in both husband and wife. A joint tenancy with right of survivorship was created. In order to divest the wife of her interest in such property there must be a showing of fraud, duress or mistake, or there must be established a showing that there was no intention for the beneficial interest to follow the legal title. Frey v. Wubbena, supra. The burden of establishing such a showing is upon the husband, in this case, and the showing must be made by clear and convincing evidence. In my judgment such a showing was not made in the case, and, other than the self-serving declarations of the husband, there was no evidence to support the position that he did not intend for his wife of over twenty years to have a joint interest in the savings account.
Finally the majority, without citing any Arizona authority, hold that while an appeal is pending the trial court may nevertheless hear and modify the terms of the decree.
Such a position is contrary to what at one time I thought was the settled law in Arizona. Whitfield Transportation, Inc. v. Brooks, 81 Ariz. 136, 302 P.2d 526 (1956); Ackel v. Ackel, 57 Ariz. 14, 110 P.2d 238 (1941); Allison v. Ovens, 102 Ariz. 520, 433 P.2d 968 (1967), cert. denied 390 U.S. 988, 88 S.Ct. 1184, 19 L.Ed.2d 1292 (1968).
The majority feel that A.R.S. § 25-321 which gives the superior court authority to change or alter the final judgment, is also authority for the trial court to act even while the matter is on appeal. No Arizona
The provisions of A.R.S. § 25-321 are not in conflict with our previous holdings, and especially in this case where there is no final judgment since the matter has not been resolved on appeal. Secondly an appeal, according to our previous holdings, removes the entire case from the superior court and there is nothing pending in that court upon which it can act.
The experience over the years has made it abundantly clear that the holding in Allison v. Ovens, supra, and prior cases is not only good law but good sense. While a matter is on appeal, particularly in a divorce action, the battles, disputes and bitterness can continue unended in the trial court during the pendency of the appeal. Errors of law made by the trial court can be compounded. Until the appeal is resolved the parties remain undecided in their rights. Decisions by the appellate court may so affect the case that so-called modifications during the course of the appeal may be made nullities.
Ample protection is afforded the parties by permitting application to the appellate court for a limited return of jurisdiction to the trial court. The appellate court can provide adequate protection to the needs of the parties as they occur, and upon a proper showing can permit the trial court to hear applications for modifications of such matters as custody, child support or alimony.
In this case the ultimate disposition of a large sum of money is the principal issue. A modification of support payments by the husband would certainly have to be changed if the sum is awarded solely to him. From a policy standpoint it makes little sense to allow the trial court to be occupying itself with such matters only to have the very basis of the decision subsequently made a nullity after ruling by the appellate court. In other words if the trial court finds the husband in reduced circumstances, reduces the child support payments and shortly thereafter the appellate court awards substantially all the assets to the husband the so-called need or reduced circumstances is no longer the fact. Of course it can be urged that another petition for modification can be filed by the wife to secure an increase in the child support payments which of course increases the expense and time of the litigation.
The abandonment of our previous rule will only lead to extended litigation in the superior court on those divorce cases which are appealed. The results of such a rule can be of no aid to the parties, to the trial court nor to the cause of justice.
HAYS, C.J., concurs.