Rodieck v. Rodieck: Separation from Bed and Board
Arizona law in 1969 offered three ways for an unhappy spouse to end a marital relationship: filing for separate maintenance, separation from bed and board, or a dissolution (absolute divorce). The Arizona statute (ARS 25-333) provided that a separation from bed and board “shall be commenced and conducted as actions for absolute divorce.” Does that mean that a family law court could dissolve a marriage in an action for separation from bed and board? This was the question raised in the case of Rodieck v. Rodieck: 450 P.2d 725, 9 Ariz. App. 213 (Ariz. Ct. App. 1969).
Facts of the Case
Mary Rodieck, married to George Rodieck, filed for separation from bed and board under the then existing Arizona law. The court granted the separation and divided their property. Mary appealed the terms of the property division. The Court of Appeals, however, noted an initial question of jurisdiction: Does a superior court, under the law of this state have jurisdiction to dissolve the community in an action for separation from bed and board? It was this issue the court found dispositive of the case.
Separation from Bed and Board
The Court first reviewed the history of this method of a legal separation in a marriage. Under common law, it was not a divorce at all. The status of the parties as married people remained the same, with the exception that the wife was freed from the obligation of living with her husband. The Court reviewed state laws to determine whether a trial court has authority to dissolve the community in this type of action. Divorce actions in Arizona are statutory, and the courts have only those powers specifically given to them by statute. The statute then in effect provided:
A. The proceedings shall be commenced and conducted as actions for absolute divorce, and the court may award such sum for attorney’s fees and alimony during the pendency of the action as the circumstances and situation of the parties warrant.
B. The court may make and enter such judgment for support of the wife and her children by the husband, or out of his property or earnings, as is just and proper, and may grant such further judgment as the nature and circumstances of the case require, whether a decree for separation is granted or not.
C. On joint application of the parties and proof of their reconciliation, the court which granted the judgment of separation may revoke it under such regulations and restrictions as the court prescribes.
Although the language of the statute said that the action was to be “commenced and conducted as actions for absolute divorce,” the Court said that this only meant that the same procedure should be used as in a dissolution action. It also noted that section B described support for the wife and children, but not property division. The Court found that the language “whether a decree for separation is granted or not” suggested that the community property was not to be divided. That language meant that the family court could grant a decree for separate maintenance even though a decree of separation from bed and board is denied. But in Arizona, the court cannot divide community property when issuing a decree for separate maintenance.
Other State Rulings
The Arizona statute was taken from a Minnesota law that has since been amended and revoked, so the Court of Appeals reviewed rulings from other states. Generally, states allow the courts to divide property in actions for separation from bed and board only where authorized by statute, and in most instances find that no authority to divide property existed at common law. After an extensive review of the law, the Court ruled that that dissolution of the community (including the division of property) in a decree of separation from bed and board is only authorized if the statute permits it. Where, as in Arizona, the divorce statute does not specifically permit it, the Court must look at other possible statutes that may permit division of property.
The Court found that the Declaratory Judgments Act would grant the trial court authority if one of the spouses made a claim of ownership of separate property. Under this theory, the Court determined that the trial court had authority to award George his separate property.
The Court of Appeals next noted that dissolution of the community is inconsistent with the policy of separation from bed and board. The law authorizes the court to revoke a decree of separation from bed and board if the parties reconcile. It would make no sense to allow legal separation that contemplates reconciliation and at the same time dissolve the marriage. The Court went on to discuss case law holding that all of a husband’s earnings while married – even if the couple is separated – remain community property. That is also inconsistent with dividing up community property as part of separation.
At that time, Arizona law also granted the husband authority to manage all community property during a marriage, whether the couple was separated or not. That would also be inconsistent, the Court felt, with a division of property during separation from bed and board. For those reasons, the Court ruled that the family law court did not have authority to divide the Rodieck’s community property. It reversed the lower court’s judgment other than the award of George’s separate property to him.
Please note this article was posted for historical reference only and does not reflect the current laws in the state of Arizona regarding legal separation. Please consult with a qualified Arizona divorce attorney for information on Arizona divorce laws.