Bell v. Bell
| Citation | 835 P.2d 1331,122 Idaho 520 |
| Decision Date | 01 July 1992 |
| Docket Number | No. 18839,18839 |
| Parties | Herbert K. BELL, Jr., Plaintiff-Appellant, v. Dorothy R. BELL, Defendant-Respondent. |
| Court | Court of Appeals of Idaho |
Beer & Cain, Boise, for defendant-respondent. Dennis L. Cain, argued.
Herbert Bell filed for divorce on March 30, 1988. A trial was held on September 27, 1988. A hearing for more evidence was held on November 9, 1988, pursuant to Dorothy Bell's motion to reopen the case for additional evidence. After considering various motions of the parties, a judgment and decree of divorce was entered on May 24, 1989, in favor of Dorothy who was awarded a disproportionate share of the community property in lieu of permanent maintenance. Herbert appealed to the district court which affirmed in part, but remanded the case. Herbert brings this appeal alleging several errors. We affirm the appellate decision of the district court with regard to judgment and decree of divorce entered by the magistrate.
The issues presented are as follows. 1) Did the magistrate err in finding that Herbert was at fault and that Dorothy was without fault? 2) Was the magistrate's classification of certain debts as Herbert's separate debts erroneous? 3) Was the magistrate's decision to reopen the record after trial an abuse of discretion? 4) Did the magistrate err by awarding attorney fees to Dorothy? Herbert also contends that the magistrate's June 4, 1990, special award of attorney fees was erroneous. 5) Should the magistrate have imposed sanctions against Dorothy's counsel, such as disbarment and/or awarded punitive damages against counsel in favor of Herbert? 6) Did the magistrate's characterization of the disproportionate award to Dorothy as being in lieu of maintenance, with the express intent that Herbert's debts not be dischargeable in bankruptcy, violate Herbert's rights under the Fourteenth Amendment? 7) Were the magistrate and district judge biased against Herbert, and should they be disqualified from further proceedings in this case?
The parties were married in 1957 while Herbert was in the Air Force, and they have lived in Idaho since 1968. They have one child, and she is over the age of majority. Herbert is a certified public accountant and holds a law degree, as well as a master's degree in business administration. Herbert has been the major source of income for the community. He taught accounting at Boise State University and also worked seven years for the State of Idaho Department of Finance. After his retirement from state employment, he started his own accounting business. At the time of the divorce, Dorothy had attended college for approximately two years but had not yet earned a degree. Dorothy has not worked outside the home other than on a volunteer basis since approximately 1973.
Herbert accumulated substantial debt during the marriage. Dorothy attempted to protect herself from future liability by entering into an agreement with Herbert on April 24, 1986. The agreement provided that Dorothy would not be liable for debts on certain credit card accounts specified in the agreement, and that the parties would bear sole obligation for debts incurred by each from the date of the agreement.
Herbert filed a complaint for divorce on March 30, 1988. Dorothy filed an answer and counterclaim. In June, 1988, the court ordered Herbert to pay temporary maintenance to Dorothy. After the one-day trial, Dorothy moved to reopen the record for additional evidence concerning Herbert's disclosure of his bank accounts and other financial information. The hearing was held on November 9, 1988. Dorothy proved that Herbert had executed a large bank transaction, but she failed to prove any net effect revealing hidden income, and thus no significant evidence was presented. From November through March, several motions were made by the parties involving temporary maintenance and attorney fees.
On March 30, 1989, the court heard Dorothy's motion for contempt which was based on Herbert's failure to pay temporary maintenance payments for December and January. Herbert maintained that he had voluntarily agreed to the order in June, 1988, because it contemplated maintenance through mid-October, 1988, when the divorce would be final, given the trial date of September 27. In spite of his contentions, Herbert failed to move to terminate or reduce the temporary maintenance until November, 1988, and he did not set it for hearing until December 22, 1988. Based on the above proceedings, the magistrate concluded that Herbert's temporary maintenance obligations terminated on December 31, 1988.
Although Dorothy had requested permanent maintenance and a disproportionate award in her counterclaim, the magistrate would not award her both; rather, he informed Dorothy that she could choose one or the other. Dorothy elected to receive a disproportionate award of community property, including the family residence. The magistrate's findings of fact and conclusions of law were filed May 9, 1989. The magistrate stated that the entry of the divorce decree was prolonged by Dorothy's motion to reopen the case, and by her delay in notifying the court of her preference for either maintenance or a disproportionate award of community property. The magistrate stated, however, that the delays did not amount to bad faith on behalf of Dorothy.
In his findings, the magistrate determined that Herbert was at fault, he should pay the outstanding balances of both attorneys' fees at the rate of $125 per month, Dorothy was without fault, and that she lacked sufficient property to provide for herself. Under the circumstances, the magistrate concluded that a disproportionate award of the community assets in lieu of spousal maintenance would be appropriate.
Consistent with the prior findings, the judgment and decree of divorce provided for the award of the following community assets to Herbert with specified values determined by the court totalling $63,878: one car, assorted household items, various securities and bank accounts, a lot in Idaho City, his accounting practice, and the present value of his Idaho and twenty percent of his Air Force retirements. Herbert was assigned community debts totalling $20,434. Herbert was awarded certain stock as his separate property amounting to $2,483. The judgment also provided that Herbert assume any debt owed on the separately-owned stock and all other debts of the parties, except for the home mortgage allocated to Dorothy, amounting to approximately $45,000. The allocation of this debt to Herbert was based on the agreement between the parties made April 24, 1986. That agreement provided that Dorothy would not be liable for prior community debts incurred by Herbert on certain specified accounts. The agreement also provided that all debts incurred by each party after the date of the agreement would be the separate debts of each.
Dorothy was awarded community assets including the residence, the other car, and some securities and bank accounts totalling $97,229. Dorothy was ordered to assume the community debt on the residence of $12,984.
When a case originates in the magistrate division, is appealed to the district court, and is subsequently appealed, we review the magistrate's decision independent from, but with due regard for, the district court's decision. McNelis v. McNelis, 119 Idaho 349, 806 P.2d 442 (1991). We will uphold factual findings where they are supported by substantial competent evidence. Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct.App.1988).
The first issue Herbert raises is whether the magistrate erred in finding that he was at fault without attributing fault to Dorothy. Herbert also contends that the magistrate should have identified which provision of I.C. § 32-603 constituted the grounds for divorce.
Dorothy contends that the issue of fault is moot because it applies only with respect to Dorothy's entitlement to maintenance. Although she had requested maintenance in her answer and counterclaim, she chose to receive a disproportionate share of the community assets. At the time of the Bells' divorce, a finding of fault was required where maintenance was awarded. I.C. § 32-705. 1 Dorothy contends that because she elected the disproportionate award, the magistrate's finding of fault is inconsequential, and therefore, Herbert's challenge is moot. We disagree.
Because of the finding of fault on behalf of Herbert, the magistrate granted Dorothy the divorce. Indirectly, the finding is one of the reasons for the disproportionate award of community assets to Dorothy, because the award was in lieu of maintenance. Furthermore, for a court to award attorney fees under I.C. § 32-704(2), it must consider the financial resources of the parties and the factors in I.C. § 32-705. The magistrate awarded attorney fees to Dorothy and at that time, I.C. § 32-705 required a finding of fault. Even the revised version provides that fault is a factor to be considered, although not a mandatory element. We reject Dorothy's argument that the magistrate's finding of fault is now moot.
We next address Herbert's contention that the magistrate should have specified the reasons for his finding of fault within those grounds contained in I.C. § 32-603. Although it is preferable for a magistrate to delineate the specific grounds for awarding a divorce contained in I.C. § 32-603, we will not overturn an award of divorce based upon the fault of one spouse, where the basis for such a finding is supported by substantial competent evidence. Cf. Hentges v. Hentges, supra (). Analogous is the rule that, "[w]...
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