Becchelli v. Becchelli

HOLOHAN, Justice (dissenting). While generally concurring with the result reached by the majority to send this case back to the trial court for proper disposition of the real property, I disagree with the directions given to the trial court to divide the property according to the construction placed on A.R.S. 25-318 by the majority. *235 I agree with the position taken by Division Two of the Court of Appeals in Needel v. Needel, 15 Ariz.App. 471 , 489 P.2d 729 (1971). In the cited case the Court of Appeals stated: . . we believe that the legislature recognized the widespread practice in the State of Arizona of putting property in joint tenancy with the right of survivorship in order to avoid the expense and delay of probate proceedings. The language of the statute as amended clearly indicates to us that the legislature intended that the court should be able to exercise the same powers over joint tenancy property as it exercises over community property.” 15 Ariz.App. at 474 , 489 P.2d at 732 . Due to the widespread use of joint tenancy both personal and real property is often placed in joint tenancy with little consideration of the legal effects caused by such form of ownership. Prior to the 1962 amendment the statute clearly forbade the court from dealing with property other than community property. In Collier v. Collier, 73 Ariz. 405 , 242 P.2d 537 (1952), this Court held that married persons who placed property in joint tenancy had destroyed the community nature of the property and had created separate property. Being separate property, this Court held, that in a divorce action the superior court had no authority to compel either of the parties to divest himself or herself of their interest in that separate property. The 1962 amendment to A.R.S. 25-318, subsec. A changed the statute so that the superior court did have jurisdiction to divide jointly owned property of the parties in a divorce action or to partition such joint property as otherwise provided by law. The majority takes the view that the statute is procedural and the provision for division means an equal division. Regretfully, this Court had the opportunity in 1971 to correct the holding in Needel v. Needel, supra, but petition for review was denied which, while we may disavow it, is generally construed by many in the legal profession and in the courts as tacit approval of the holding. The majority contends that the amendment was merely a procedural device. It' certainly was not necessary for the legislature to create a procedural device because of any special need. In Collier v. Collier, supra, this Court stated: “We know of no reason why the general statutory provisions relating to partition, . are not available to the parties in a divorce action. Since the court in such a proceeding may not compel either party to divest himself or herself of the title to separate property, it must necessarily have resort to an action in partition to sever the separate interests in the joint tenancy property, and we hold that actions for divorce and actions for partition, both being equitable proceedings,' may be joined in one complaint and should be stated in separate counts.” 73 Ariz. at 414 , 242 P.2d at 542 . : • • Thus at least ten years before the amendment it was recognized that a division of the joint property could be achieved by combining the action for division of the separate property as a separate claim with a claim for divorce. In at least two cases after the 1962 amendment this Court had occasion to comment on the amendment. In each- in-, stance this Court treated the 1962 amendment as involving a substantive change of-law rather than a procedural device. It is true that the comments concerning the 1962 amendment were dicta, but it does add weight to the position that cases heard by this Court within a few years of the amendment showed that this Court viewed the 1962 amendment as involving a substantive change in the method of holding and dividing property in a divorce case, and that by reason of that change this Court was carefully examining the date o.f acqttisition of the property in question so that there was no retrospective application of the 1962 amendment to property, acquired prior to that date. If this Court *236 had felt that the 1962 amendment was purely procedural there would have been no need for such care and caution since the legislature could give retrospective effect. to procedural statutes. See Headley v. Headley, 101 Ariz. 331 , 419 P.2d 510 (1966) and DeMarce v. DeMarce, 101 Ariz. 369 , 419 P.2d 726 (1966). In my view the 1962 amendment effected a substantive change in the law of property, and married couples who took property in joint ownership- as joint tenants, as tenants in' common, or as tenants by the entirety took such property subject to the power of a court in a divorce action to order a division of that property in the same manner as community property. As with Division Two of the Court of Appeals I believe' that the widespread use of joint tenancy ownership necessitated the 1962 amendment to provide an equitable means of dividing such property in the event of divorce, and that by considering such joint ownership property as similar to community ownership the amendment did give to the superior court the opportunity to make an equitable distribution of all the property even though some of the property would be in the category of separate property rather than community. In my judgment this was the .very purpose of the exception. The court could not divest a person of separate property before 1962, but after 1962 the court may not divest a person of separate property except the listed forms of joint ownership and as. to these the court may divide the .property in the same fashion as the.community property. If the legislature had meant that the court may divide the property equally they could have easily said that, but they didn’t. The legislature did. provide in the same section that the partition method elsewhere set forth in the code could be used. Our task is to find the intent of the legislature at the time of the enactment of the amendment. In my view our earlier statements, nearer to the time of the enactment are most persuasive, and I would adopt the construction of the amended statute set forth in Needel v. Needel, supra.