Ross v. Ross

648 P.2d 1119, 103 Idaho 406, 1982 Ida. LEXIS 271

• Court: Idaho Supreme Court
• Decided: April 28, 1982
• Docket: 12980, 13260 and 13265
• Status: Published

Opinions

DONALDSON, Justice.

These are appeals and cross-appeals from various rulings of the trial court in a divorce proceeding. We affirm in part, reverse in part, and remand for further proceedings.

Lucy Hay Ross (hereinafter plaintiff) and John D. Ross (hereinafter defendant) were married in 1953 and had three children, one of whom was fifteen years old at the time of the divorce and was in the custody of the plaintiff.

Defendant is a physician with a specialty in ophthalmology and had so practiced for approximately ten years at the date of the divorce. In 1975, defendant earned approximately $100,000 from his medical practice. The parties had accumulated community property valued at approximately $617,000.

Plaintiff filed for divorce in March, 1976, on the grounds of adultery and extreme cruelty. Defendant admitted the allegation of extreme cruelty but denied the allegation of adultery and filed a counterclaim for divorce on the grounds of irreconcilable differences.

Defendant then moved for partial summary judgment on the divorce issue only. At the hearing plaintiff did not resist the granting of divorce, but rather argued that a partial summary judgment for divorce should be granted to her, rather than the husband, on her grounds of adultery or extreme cruelty. The court entered what was denominated “Order for Partial Summary Judgment and Judgment of Divorce.” The court ordered that the marriage be dissolved, but that additional questions concerning alimony, the division of property, and the custody and support of the minor child, be reserved for trial. The court first granted the divorce on grounds of irreconcilable differences, but on plaintiff’s motion and after further argument changed the grounds to extreme cruelty.

Plaintiff later moved to vacate the partial summary judgment and also moved for a new trial on the basis of mistake, inadvertence, surprise, or excusable neglect in failing to file affidavits or authorities in opposition to the motion for summary judgment. On October 15, 1976, defendant, by way of opposition to plaintiff’s motion to vacate the summary judgment, filed an affidavit stating that he had remarried. On that same date a hearing was held and the motions were denied.

Trial began upon the remaining issues on March 14, 1977, following which the trial court entered its findings of fact, conclusions of law, and decree. The court found inter alia that defendant had inflicted extreme cruelty on plaintiff; that the evidence was not sufficiently clear and convincing to constitute proof of adultery by defendant; that the net community property value was $617,120, and that an equal division of the property was fair, reasonable and just, and would result in the least adverse tax consequences to the parties; that defendant must pay $30,000 per year to plaintiff as alimony for her lifetime (that alimony provision was later modified to require alimony at $30,000 per year for five years, $24,000 for the sixth year, $18,000 for the seventh year, $12,000 for the eighth year, $6,000 for the ninth year, and thereafter alimony to cease); that defendant must pay plaintiff the sum of $150 per month for child support; that defendant must sell the parties’ residence and their interest in a farm partnership and pay to plaintiff the sum of approximately $151,000 “directly from the proceeds of said sales;” that defendant must pay all tax liability resulting from income from the community property, together with all tax liability upon the personal income of the defendant “through the date of plaintiff’s divorce from the defendant” and all taxes that might arise from the sale of the residence and the farm partnership; that defendant must pay his own attorney fees, with plaintiff to pay the first $12,500 of her attorney fees, and defendant to pay the remainder thereof of approximately $6,000. Finally, plaintiff was granted a divorce upon the ground of extreme cruelty “nunc pro tunc and of record as of September 20, 1976.” Since we affirm the summary judgment this issue is moot.¹

Plaintiff first asserts that the trial court erred in entering a partial summary judgment and decree of divorce, reserving additional issues for later trial. In Newell v. Newell, 77 Idaho 355, 362, 293 P.2d 663, 667 (1956), cert. denied, 352 U.S. 871, 77 S.Ct. 95, 1 L.Ed.2d 76 (1956), we held that “[t]he divorce laws of Idaho make no provision for an interlocutory judgment of divorce, ...” However, subsequent to Ne-well, Idaho adopted the Federal Rules of Civil Procedure. I.R.C.P. 56(a) now permits judgment “upon all or any parti' of a claim. (Emphasis added.) Even though the trial court did not certify the partial summary judgment as final as required in I.R.C.P. 54(b), for the reasons stated below, we nonetheless hold that following the principles of quasi estoppel plaintiff is estopped from alleging that error occurred in the trial court’s granting of the decree of divorce.

Concerning quasi estoppel this Court has stated,

“To constitute quasi estoppel, the person against whom the estoppel is sought must have gained some advantage for himself, produced some disadvantage to the person seeking the estoppel, or induced such party to change his position; in addition it must be unconscionable to allow the person against whom the estoppel is sought to maintain a position which is inconsistent with the one in which he accepted a benefit. Dawson v. Mead, 98 Idaho 1, 557 P.2d 595 (1976); KTVB, Inc. v. Boise City, 94 Idaho 279, 486 P.2d 992 (1971).” Tommerup v. Albertson’s Inc., 101 Idaho 1, 6, 607 P.2d 1055, 1060 (1980).

Firstly, it was plaintiff who filed for the divorce, and as stated previously she argued at' the summary judgment hearing on September 20, 1976, that the divorce should be granted. This divorce, which was granted on the grounds argued by plaintiff, allowed her to be rid of her husband which she wanted, and thus conferred a benefit, and also allowed defendant to change his position in that he remarried on September 21, 1976.

Secondly, plaintiff has taken advantage of the favorable provisions of the judgment. She has received large amounts of property, has had repeated executions issued on the judgment and received approximately $67,-000 in cash in settlement of certain of those executions and she is now seeking to maintain a position which is inconsistent with the one in which she accepted those benefits. See Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975).

This case is similar to Willis v. Willis, 93 Idaho 261, 460 P.2d 396 (1969). In Willis, the wife attempted to vacate the decree under I.R.C.P. 60(b). This Court stated:

“Additionally, appellant has accepted all the benefits of the divorce decree and the provisions of the property settlement agreement. So far as the record is concerned there is no showing she made any offer or tender to restore or return any of the property or funds, except upon a court ordered recission of the agreement and under such circumstances the court looks with disfavor upon a motion for relief under Rule 60(b).” Id. at 265, 460 P.2d at 400.

Because plaintiff initially sought the divorce and argued that a divorce should be granted to her, and the entry of the decree enabled defendant to remarry, as he did, and the plaintiff took advantage of the favorable provisions of the decree of divorce, we hold that it is unconscionable for her to now maintain an inconsistent position, and therefore, she is estopped to deny its validity.

Plaintiff also asserts that the trial court erred in its conclusion that the evidence was insufficient upon which to base a finding of adultery by the defendant. Divorces based on adultery should be granted only upon very clear and conclusive evidence of the adultery. E.g., Leonard v. Leonard, 88 Idaho 485, 401 P.2d 541 (1965). The record before us supports the conclusion of the trial court that plaintiff failed to carry the burden of proof of adultery.

Plaintiff next asserts that the trial court erred in its award of child support. Plaintiff argues that the court award of $150 per month was inadequate and that the child support award should have been at least $200 per month. Child support awards rest in the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. E.g., Fuller v. Fuller, 101 Idaho 40, 607 P.2d 1314 (1980). Here, considering the circumstances of the parties and the finances available, the trial court’s award of child support was certainly modest. However, considering the finances available to plaintiff the trial court may well have concluded, and justifiably so, that both parents were able to and should participate in the support of the minor child. We find no abuse of discretion.

Defendant asserts error in that portion of the court’s order requiring him to pay all of plaintiff’s attorney fees above the amount of $12,583 incurred during the divorce and property settlement proceedings. This amounted to approximately $6,000. It is asserted that the trial court erred in awarding those attorney fees after the community property had been divided. We agree.

“We have ruled that the proper manner of carrying out the mandate of this section [I.C. §§ 32-708, 32-704] is to satisfy the community debts, then the wife’s temporary support and attorney fees, from the total property owned by the community before equitable division of the proeprty.” Mifflin v. Mifflin, 97 Idaho 895, 897, 556 P.2d 854, 856 (1976) (emphasis in original). In the instant case, the trial court erred in failing to satisfy the award of attorney fees from the total property owned by the community before dividing that property.

Defendant also asserts that the trial court erred in ordering him to pay $2,000 of the $5,000 attorney fees incurred by plaintiff during post-trial motions. Under I.C. § 32-704 after entry of a judgment, where a former wife has access to and control of her share of the community property, an award of attorney fees cannot be characterized as an award of “money necessary to enable the wife ... to prosecute or defend the action.” Parker v. Parker, 97 Idaho 209, 215, 541 P.2d 1177, 1183 (1975) (emphasis in original). In the instant case, plaintiff, by judgment, had been awarded over $300,000 of the community property, and as the trial court stated in its order, “substantial portions of the plaintiff’s share of the community property of the parties have been delivered to and are now under the exclusive possession and control of the plaintiff .... ” Thus, we hold that the trial court erred in requiring defendant to pay $2,000 of plaintiff’s attorney fees incurred after judgment had been rendered.²

Defendant asserts that the trial court made two errors in its property division determination. First, he argues that the trial court over-valued the parties’ residence. An appraiser for plaintiff testified to a value of $115,000, while that of defendant’s appraiser valued the home at $95,000. The court adopted the $115,000 value. The valuation of any property is a relatively imprecise procedure and the trial court must make the ultimate determination as between conflicting values submitted by different appraisers. E.g., Chugg v. Chugg, 94 Idaho 45, 480 P.2d 891 (1971). The valuation of the residence in the instant case is not clearly erroneous, being supported by substantial, competent, although conflicting, evidence, and will not be disturbed on appeal. I.R.C.P. 52(a).

Defendant also asserts error in the trial court’s order requiring him to sell the residence and a farming partnership and distribute $151,765 of the sale proceeds to the plaintiff. Defendant argues that the court should have either divided the sales proceeds equally or awarded the home to the wife and the partnership to the husband. Ordinarily, the better practice would be for the court to do as suggested by defendant, but under the facts and circumstances in this case we agree with the trial court. Where, as here, a divorce is decreed upon th'j ground of extreme cruelty, the community property must be assigned the proportions that the trial judge deems just. I.C. § 32-712(1). A trial court thus has wide discretion in dividing the community property and its determination will not be disturbed absent a clear showing of abuse of discretion. E.g., Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

Because plaintiff was moving to South Carolina and did not want the house, and would be unable to supervise the sale of the home or the partnership interest, we find no abuse of discretion in the trial court’s awarding the home and partnership interest to the husband and then ordering him to sell the property. Also, under the facts of this case, we find no abuse of discretion in the trial court’s order that the husband pay the wife a predetermined sum of the proceeds to insure her of receiving at least one-half of the value of the property.

Defendant also argues that the trial court abused its discretion in granting alimony to plaintiff in view of the substantial sum awarded to her in the property division.³ In addition, he claims that the alimony award reflects an inadequate consideration of tax consequences, because it was awarded for less than ten years. See 26 U.S.C. §§ 71, 215 (1954). Pending the outcome of this appeal, defendant has been paying plaintiff $2,000 per month pursuant to stipulation.

The standard to be applied in awarding alimony requires the district court to give due consideration to the correlative needs and abilities of both parties. Mifflin v. Mifflin, 97 Idaho 895, 556 P.2d 854 (1976). As stated in Mifflin a decision denying or awarding alimony to a party “will not be overturned by this Court in the absence of an abuse of discretion.” Id. at 898, 556 P.2d 854 (citing Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967)).

After reviewing the record in this case we find that the trial court abused its discretion in awarding to plaintiff $210,-000 in alimony over a nine-year period since there was no showing of need. Alimony is not awarded to the wife as a matter of right but only at the discretion of the trial court after a showing of need. Mifflin, supra; Wyatt v. Wyatt, 95 Idaho 391, 509 P.2d 1312 (1973); McNett v. McNett, 95 Idaho 59, 501 P.2d 1059 (1972). The plaintiff’s share of the community property was worth over $300,000. She also testified that her necessary expenses were approximately $875 per month. The trial court found that plaintiff was a college graduate, capable of obtaining employment with additional education at a cost of approximately $3,600. Thus, while temporary alimony could be justified while plaintiff was going back to school and had custody of the minor child who is now of majority, it cannot be justified in the amount of $210,000 paid over a nine-year period. This is particularly true when the trial court found that with prudent management of the over $300,000 worth of assets plaintiff could live comfortably on the income from her assets. Therefore, we reverse the trial court’s award of $210,000 in alimony and remand to the district court for it to determine if the division of the property is still “fair and equitable” in view of the fact that plaintiff will not be receiving alimony. What may have been a “just and equitable division” of the community property in the mind of the trial judge may well have been influenced by the additional $210,000 which he decreed to plaintiff as alimony. The statute permits any division of the community property which the trial judge considers just under all the circumstances, I.C. § 32-712, and we deem it desirable to allow the trial judge to make that determination rather than usurping his discretion at this level.

The total amount of alimony awarded, i.e., $210,000, is in our opinion excessive. However, the plaintiff has been paying pursuant to stipulation and order of the district court $2,000 per month temporary support during the pendency of this action and these payments may continue until entry of final judgment in the district court. Thereafter, the $2,000 per month paid pending determination of the action should cease, and no permanent alimony pursuant to I.C. § 32-706 should be awarded.

We have reviewed all the other issues raised by the parties and find that the rulings of the trial court are otherwise supported by the evidence and are not in error. The judgment and orders of the court below are therefore affirmed in all respects, except as indicated above.

The court below denied plaintiff an advance of attorney fees to pursue this appeal, finding such an advance not to be “necessary” under I.C. § 32-704. Although the final determination of whether attorney fees should be awarded on appeal rests with this Court, I.A.R. 41, we adopt in this case the findings of the district court that plaintiff had adequate funds in her possession to prosecute this appeal. Consequently, we award no attorney fees under I.C. § 32-704. Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975); Tolman v. Tolman, 93 Idaho 374, 461 P.2d 433 (1969).

The case is affirmed in part, reversed in part, and remanded for the limited proceedings described herein.

No costs allowed.

McFADDEN and SHEPARD, JJ., concur.

1 . The Court does not approve of the use of “nunc pro tunc” concept in this context. However, in this particular case it is immaterial because the trial court entered the partial summary judgment terminating the marriage between the parties and this Court is recognizing (See infra,) the validity and finality of that decree by holding that the plaintiff is estopped from claiming error in the granting of the decree of divorce by partial summary judgment. Therefore, it was unnecessary for the trial court in the final decree to relate the property division decree or divorce decree back to September 21, 1976.

2 . Mifflin v. Mifflin, supra, is dispositive as to resort-to community property for the payment of attorney fees incurred prior to a divorce decree.

3 . The constitutionality of I.C. § 32-706, upon which the alimony award is based, was not raised on appeal. In fact, the defendant-appellant in a reply brief stated, “We want the record to be absolutely clear, first, that the husband did not raise the constitutional issue of Orr v. Orr in the trial court; second, the husband has not heretofore raised it on appeal; and third, the husband does not raise it on appeal.” Consequently, we do not decide that issue. Oregon Shortline R.R. Co. v. City of Chubbuck, 93 Idaho 815, 816, 474 P.2d 244, 245 (1970).