Hammond v. Hammond

448 P.2d 237, 92 Idaho 623, 1968 Ida. LEXIS 341
CourtIdaho Supreme Court
DecidedDecember 12, 1968
Docket10117
StatusPublished
Cited by17 cases

This text of 448 P.2d 237 (Hammond v. Hammond) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hammond v. Hammond, 448 P.2d 237, 92 Idaho 623, 1968 Ida. LEXIS 341 (Idaho 1968).

Opinion

TAYLOR, Justice.

Plaintiff (appellant) Irene A. Hammond, and defendant (respondent) Harley J. Hammond, intermarried August 20, 1939. Of four living children, two were minors at the time this action was instituted.

December 6, 1966, plantiff through her attorney, William Stellmon, brought this action for divorce on the ground of extreme cruelty. Defendant answered and counterclaimed for divorce, also on the ground of extreme cruelty.

Responsive to plaintiff’s motion therefor, the court on March 6, 1967, ordered defendant to pay plaintiff temporary support and in addition temporary attorney’s fees in the sum of $400.00.

March 7, 1967, the court granted Mr. Stellmon’s motion to withdraw as plaintiff’s counsel “on the grounds and for the reason that said plaintiff and said attorneys cannot agree on the subsequent actions to be taken and the methods to be followed in the prosecution and defense of defendant’s counterclaim in the action.”' Thereafter present counsel J. H. Felton represented plaintiff.

The cause was tried before the court April 24 and 25, 1967, and additional evidence on the value of community property was introduced June 26, 1967. Judgment was entered August 1, 1967, granting a divorce to plaintiff on the ground of extreme cruelty, and awarding to her custody of the minor children.

The court found that the parties had acquired as community property all of the stock of the H. J. Hammond Company, a family-owned corporation; lots 14 and 15, in block 7, Town of Elk City, Idaho (each lot 50' x 150’) 1 and miscellaneous items of household furniture and fixtures. The court also found that the H. J. Hammond Company owned various items of logging equipment; that the indebtedness of the company exceeded the value of its assets, making it difficult or impossible to divide in kind; that in lieu of division in kind, the plaintiff be awarded the items of household furniture and fixtures which she had in possession, and such other items as she may select; that in addition thereto plaintiff was awarded the sum of $12,000.00, payable in monthly installments of $200.00 each in lieu of a division of the balance of the community property.

Defendant was awarded the stock of the H. J. Hammond Company and the two lots-, in Elk City, and defendant was required to-pay all community debts existing as of December 2, 1966, and to' pay to the plaintiff $100.00 per month per minor child for child support. Defendant was also required to pay to plaintiff’s attorney $1,000.00 as attorney’s fees.

By her first two assignments of error, plaintiff contends that the trial court *625 forced her to go to trial without providing her with funds for the preparation of her case, and prevented her from access to community funds for the preparation of her case equal in amount to that available to and expended by defendant. Plaintiff cites no authority in support of this contention. No motion was made by plaintiff for an allowance by the court of funds to employ appraisers or accountants. The record shows that she was awarded $400.00 temporary attorney’s fees prior to trial, and the further sum of $1,000.00 attorney’s fees in the judgment. The advisory fee schedule of the Idaho State Bar Association suggests a minimum fee of $400.00 for a contested divorce action. Having regard to the circumstances of these parties, the nature of the issues involved, and the absence of a motion for additional expense allowance, we cannot say that the trial court abused its discretion by failing to award more than $1,400.00 for the services of plaintiff’s attorneys. I.C. § 32-704, and Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).

Plaintiff also contends the trial court erred in failing to award to her at least one-half of the community property and that the court erred in failing to award to her more than one-half of the community property, the divorce having been granted on the grounds of extreme cruelty.

The statute provides that:

“1. The community property must be assigned to the respective parties in such proportions as the court, from all the facts of the case and the condition of the parties, deems just, regardless of the ground or grounds on which the dissolution decree is rendered.” I.C. § 32-712

Under this statute we have said that the trial court is vested with the discretionary power to assign the community property in such proportions as the court deems just. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967).

Plaintiff has not demonstrated any serious inequity in the court’s distribution of the community property. Ample opportunity was afforded for the presentation of evidence at the trial on the value of community assets and also upon the adjourned hearing in June, two months later, and on this appeal. Nor has plaintiff supported her claim of inequity by argument based upon the record. The records of the company were available to plaintiff and to her attorney for examination and copying at least as early as April 24, 1967, and two-months prior to the closing of testimony at the final hearing on June 26. Error will not be presumed by this court on appeal, but must be affirmatively established by the appellant upon the record. State v. Poison, 92 Idaho 615, 448 P.2d 229, December 9, 1968; Morrison v. Quality Produce, Inc., 92 Idaho 448, 444 P.2d 409 (1968).

The trial court did not find separately the specific values of the items of community property. This omission has not been assigned as error, nor has any authority or argument been directed thereto by plaintiff. Under such circumstances the court’s action, or lack thereof, will not be reviewed. Supreme Court Rules, rule 41; Byington v. Clover Club Potato & Produce Company, 91 Idaho 165, 418 P.2d 206 (1966).

There is evidence in the record which, if believed, would indicate that the award to plaintiff of $12,000.00 in addition to the items of furniture and fixtures would constitute more than one-half the value of the community property.

The plaintiff also asserts that:

“The Court erred in considering and using as a basis for its decision a number of appraisals which were never admitted into evidence and at the time the court started using them were supported only by hearsay testimony.”

This assignment of error does not appear to be in accord with the record and we do not find in plaintiff’s brief, or reply brief, either citations of authority or argument in support thereof. Hence, the alleged error will not be reviewed. Supreme Court Rules, rule 41; State v. Polson, supra; *626 Vaughn v. Vaughn, 91 Idaho 544, 428 P.2d 50 (1967).

Lastly, plaintiff contends that:

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Bluebook (online)
448 P.2d 237, 92 Idaho 623, 1968 Ida. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammond-v-hammond-idaho-1968.