Level of Corroboration Required in a Fault Divorce

Today, Arizona is a no fault divorce state. However, under earlier law, couples could only divorce by proving fault. And if a spouse sought divorce for fault, it could not be based solely on her testimony. The testimony had to be corroborated. In Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963) the Arizona Supreme Court discussed the level of corroboration required.

Facts and Procedure

Mrs. Kennedy and Mr. Kennedy were a married couple. Mrs. Kennedy filed for divorce charging mental and physical cruelty. Mr. Kennedy counterclaimed charging adultery. The court awarded a divorce to Mrs. Kennedy, and ordered a division of property and alimony. Mr. Kennedy appealed. The case came to the Arizona Supreme Court.

Divorce on Grounds of Mental and Physical Cruelty

Mrs. Kennedy sought a divorce on grounds of mental and physical cruelty. Mr. Kennedy argued on appeal that her evidence was not backed up by other witnesses. He argued he should have been given a divorce based on adultery, which was corroborated by other witnesses.

The Supreme Court agreed that Mr. Kennedy seemed to have more evidence supporting his claims. However, the trial judge believed Mrs. Kennedy and disbelieved Mr. Kennedy. The Supreme Court said that the evidence did not support Mr. Kennedy so overwhelmingly that the trial court’s findings were unreasonable.

Corroboration of Testimony

Under Arizona law at the time, a divorce could not be granted on the uncorroborated testimony of a party. This corroboration could be slight. Where the charge is cruelty, the Court said that it was not necessary that every instance charged be corroborated.

It also noted that corroboration didn’t mean absolute proof. It was only necessary that the testimony of the spouse be supported and strengthened by the evidence, not confirmed in detail.

Corroborating testimony was sufficient if it tended to make an impartial person believe that the spouse’s testimony was true. Several instances of husband’s alleged cruelty were corroborated. One occurred at the machine shop they owned. Mrs. Kennedy testified that a shop employee took “improper liberties” with her person.

Mr. Kennedy suggested that she had asked for it. She asked him to fire the worker and he declined. She tried to fire the man but Mr. Kennedy ordered the man back to work. Mr. Kennedy further testified that the employee apologized to Mrs. Kennedy. But his testimony confirmed that the incident occurred and that the offending employee wasn’t fired. This sufficiently corroborated wife’s testimony.

Mrs. Kennedy testified about another act of cruelty by Mr. Kennedy that occurred on the evening Mrs. Kennedy left the Kennedy’s home. She had returned late after a church choir practice. In an argument about where she had been, Mr. Kennedy called her a “whore” and beat her.

Husband admitted that this incident occurred, and that he physically restrained Mrs. Kennedy against her will. This was sufficient corroboration of Mrs. Kennedy’s testimony. In view of this testimony the trial court did not err in granting a divorce to Mrs. Kennedy.

Distribution of Mr. Kennedy’s Separate Property

Mr. Kennedy challenged the trial court’s distribution of property. First, he contended that the sum of $4,500 brought by the parties from Ohio was his sole and separate property. The trial court found that this sum was kept in the couple’s joint bank account. They used it to buy the real property which comprised part of the community estate.

The Supreme Court noted that the presumption is that a married couple’s real estate is community property. It found nothing in the record to rebut this presumption.

Valuation of Community Property

Husband next argued that the court valued their community property incorrectly. The community assets were land in Tempe, a machine shop on the land, machinery and equipment there, and other buildings on this property. The lower court found the land and buildings to be worth $71,000. It found the machinery and equipment to be worth $8,385. The court set Mrs. Kennedy’s share at $35,000. It awarded all of the property to Mr. Kennedy and ordered him to pay Mrs. Kennedy $35,000 at the rate of $300 per month.

This distribution would be fair to Mr. Kennedy if the valuation was supported by evidence. He claims it was not. The Arizona Supreme Court agreed. The lower court had appointed a receiver to appraise the property. Husband also hired an expert to appraise it. The appraisal given by the receiver was far higher than that of expert.

The receiver appraised the machine shop as a going concern and at its liquidation value. As a going concern the receiver said the property was worth $84,800. However, it was undisputed that the machine shop was no longer a going concern. It had no business. The receiver set the liquidation value of these same assets at $61,800. The judge assigned the going-concern value to these assets. The Supreme Court said that this was not correct.

The liquidation appraisal value was the highest value supported by the record. Moreover, the receiver encumbered the property with a $16,000 mortgage. The highest net value of the property, taking into consideration the mortgage, is $45,800.

According to the record, the receiver held some $7,000 cash belonging to the community. The trial court ordered $2,500 of this fund to be paid as fees to the wife’s attorneys and awarded her the balance. Adding this $7,000 to the community asset value, and deducting Mrs. Kennedy’s attorney fees, the net community value is approximately $50,000. Of this, the court awarded her $35,000 plus $4,400 from the receiver’s funds, or $39,400. The balance remaining to Mr. Kennedy was $10,600.

The trial judge intended to divide the community property of the parties into approximately equal shares. But because of his valuation error, the effect of his order was to give Mrs. Kennedy four-fifths of the community estate. In order to avoid the expense of a retrial, the Supreme Court ordered Mrs. Kennedy’s award of $35,000 reduced by $10,000 plus whatever sum she got from the receiver.

Alimony and Attorney Fees

The Court rejected Mr. Kennedy’s challenge to the award of attorney fees to Mrs. Kennedy. It said that the trial judge has broad discretion to award attorneys’ fees in connection with a divorce action. However, the Court felt that the trial court misjudged the ability of Mr. Kennedy to earn income when it awarded alimony.

No evidence suggests that Mr. Kennedy had any prospects of income following the final order. At the time of trial, the tool and die industry, in which husband previously earned his living, was in a depressed economic condition.

Disposition

The Arizona Supreme Court remanded the case. It directed the trial court to modify the division of community property as the decision indicated. It also directed it to reconsider the alimony award after reviewing Mr. Kennedy’s earning power at the time of trial. The Court reversed the judgment in part and remanded with directions.