This appeal from a final decree in divorce proceedings attacks the portions of the decree relative to disposition of property and allowance of аlimony to the appellee-wife.
DISPOSITION OF PROPERTY
The trial court’s disposition of the parties’ property is attacked on two grounds: (1) a “jurisdictional” defect, and (2) the inequality of the division.
The “jurisdictional” attack is directed to the award of certain real property to the wife, namely the parties’ residence. The appellant-husband contends that the residence was joint tenаncy property acquired before the amendment of A.R.S. § 25-318, subsec. A, hence not subject to division by the trial court in the divorce action.
We have no quarrel with appellant’s argument that the separate property of the respective spouses was not subject to disposition by the divorce court. To support his claim that the subject property was separаte property, he presents proof ’thereof in the form of an affidavit and joint tenancy deed, valid on its face. Although this “jurisdictional” question was never presented to the trial court, thе appellant contends that jurisdictional questions may be presented for the first time on appeal.
We agree that in certain instances an appellate court will consider jurisdictional questions raised for the first time in that forum. See e.g., Ronan v. First National Bank of Arizona,
However, notwithstanding this recognized exception to the rule foreclosing appellate consideration of questions not raised in the trial court, the scope of judiciаl inquiry into jurisdiction is circumscribed by the record before the court. Cobb v. Cobb,
Examination of the record discloses the following. The husband’s complaint alleged that “there is community and separate property belonging to the parties hereto” and the prayer for relief requested “that the court enter an appropriate order dis *78 posing of the parties’ interest in separate and community property.” Thе wife’s responsive pleading denied the existence of separate property and her counterclaim alleged “that there is . community and/or joint property belonging to the рarties hereto.” The wife’s financial statement, listing the community property of the parties, included the subject real property as community property. The only testimony bearing on the stаtus of this property was that of the wife, elicited on cross-examination, to the effect that the residence had been purchased during coverture and had been paid for with community funds.
There being no express findings of fact, we must assume, in order to sustain the award of the property to the wife, that the trial court found the property to be community property. Cf., King Realty, Inc. v. Grantwоod Cemeteries, Inc.,
The record indicates that the property was acquired during marriage and therefore the presumption that it was community property attached. Kennedy v. Kennedy,
The husband attacks the trial court’s division of the community property as “grossly disproportionate” in that the wife received the lion’s share thereof. He concedes that our statutes do not mandate equal division 2 but urges that we adоpt the California statutory requirement of equal division by judicial fiat.
In this jurisdiction we are committed to a doctrine of equitable division rather than even division, precluding appellate interfеrence with the trial court’s discretion in the absence of an abuse thereof. Nace v. Nace,
We therefore confine our review of the property division to the question of whether the trial court abused its discretion, unaffected by the fact that our conclusion might have been otherwise. The wife was awarded the abоve-discussed real property valued at approximately $13,000.00 to-$17,000.00, the household furniture and personalty located therein, and two life insurance policies having a total cash surrender value of $1,900.00. She was also-awarded a 1965 Buick automobile and a savings account of the parties. The husband was awarded another savings account, a 1968 Oldsmobile automobile, a 1961 Plymouth and a 1962 Chevrolet, 606-shares of North American Finance Company stock, 183 shares of Lusk Corporation stock, and the workshop and tools located at the parties’ residence. (Thе two bank accounts were in the amount of $9,000.00’ in the wife’s, and $9,950.00 in the husband’s.)
The evidence discloses that the house, acquired in 1954, was fully paid for. The parties had been married in 1938 and with the exceptiоn of a brief period after marriage, the wife, who was 46 years old at *79 the time of trial, had not worked. The testimony further revealed that she had no special skills but was, at the time of the trial, studying cоsmetology. During the six month period prior to trial, she received only $27.00 from the husband for support and was therefore required to withdraw sums of money from the bank for living expenses. Her necessary mоnthly expenses, as detailed in her affidavit and which we do not find excessive, totalled $337.00 per month.
Since the home was fully paid for, the trial court apparently concluded that the wife’s living еxpenses would be less if she continued to live there than if the house were sold and she were required to either rent or purchase other living quarters. This conclusion is reinforced by medical evidence which created doubt as to the wife’s physical ability to pursue a full-time career as a beauty operator. Actually, with the exception of the home, the portions received by each spouse were substantially equivalent. We believe the circumstances justified allowing the wife to retain the home. We do not find here the “peculiar circumstances” which caused us to modify the property division in Finck v. Finck,
ALIMONY AWARD
The alimony award of $50.00 per week is challenged by the appellant as excessive. The trial court’s discretion in alimony matters is without cavil, Warren v. Warren,
Here the evidence establishes that the husband consistently earned an approximate annual income of $8,000.00. Although he was not employed at the time of trial, being a carpenter by trade, the trial testimony was to the effect that over the years his employment during the course of one yеar was spasmodic. In other words, his employment was not a steady week-to-week type employment, but was dependent upon the building needs in the community. The trial court apparently concluded that, in view of the consistent income pattern, the fact that the husband had been gainfully employed until two weeks prior to trial when he resigned a selling job, coupled with the fact that his trade afforded him potential income, the requisite “financial ability” criterion was met. The wife’s needs of $337.00 per month and her inability, at the time of trial, to take care of such needs would justify an allowance of $50.00 per week, particularly in view of the fact that the parties had been married twenty-eight years. Although we agree that an alimony award which is clearly excessivе and oppressive may be upset as an abuse of discretion, Tennery v. Tennery,
Finding no merit in the grounds urged by appellant for reversal of the portions of the judgment appealed from, they are affirmed.
NOTE: Judge HERBERT F. KRUCKER having requested that he be rеlieved from consideration of this matter, Judge JOHN A. McGUIRE was called to sit in his stead and participate in the determination of this decision.
Notes
.
Although appellate courts will consider extrinsic evidеnce when a challenge to
appellate
jurisdiction is presented, Farmers Insurance Group v. Worth Insurance Co.,
. A.R.S. § 25-318, subsee. A provides in pertinent part: “On entering a judgment of divorce tbe court shall order such division of the property of tbe parties as to tbe court seems just and right, * *