Bowman v. Bowman

• Decision Date: 29 January 1952
• Docket Number: No. 7718,7718
• Citation: 240 P.2d 487,72 Idaho 266
• Parties: BOWMAN v. BOWMAN.
• Court: Idaho Supreme Court

Page 487

240 P.2d 487

72 Idaho 266

BOWMAN v.BOWMAN.

No. 7718.

Supreme Court of Idaho.

Jan. 29, 1952.

Charles F. Reddoch, Boise, for appellant.

Vernon K. Smith, Boise, for respondent.

GIVENS, Chief Justice.

Appellant sued respondent for divorce, alleging cruelty and that the house and lot here in controversy were her separate, not community, property.

Respondent, by answer and cross complaint, denied the acts of cruelty, counter charged and detailed the acquisition of the porperty in question, alleged it was community property, and asked for a divorce.

Appellant recountered with new charges of cruelty, and joined issue as to the status of the property by answer to the cross-complaint.

Findings of fact and conclusions of law were waived as to the divorce, but not as to the status of the property.The court granted the divorce and found the house and lot were community property, and divided it equally.The wife appeals from that portion of the decree, assigning as error the insufficiency of the evidence to support such determination of the status of the property.

The showing, in substance, in support of appellant's contention consists of a deed from Bales and wife, November 24, 1922, for the recited consideration of $2450 to Joe Westenberg, then 18 years of age, appellant's son by a marriage prior to that between appellant and respondent, and testimony by appellant--Joe Westenberg being deceased at the time of the trial--that while the parties were living at Oakley: '* * * Joey and myself got the money raked up to come to Boise and make a down payment on the place, * * *' and with his funds paid $800 in cash and he gave a mortgage for the balance of $1650, which was later paid by Joe; and a deed from Joe Westenberg, February 19, 1924, transferring said property to her for love and affection as her 'sole and separate property and estate * * * and the rents and profits thereof to be applied to her sole and separate use.'

Declaration of homestead was filed the same day on the premises by appellant, describing herself as a married woman, wife of Merle Bowman, respondent, without any recitation therein as to whether it was community or separate property.The property thereafter was mortgaged at different times by appellant and respondent.

Section 4656 of the Compiled Statutes in effect at the time of the transfer from Joe to his mother, as applicable to a married woman, has been joined with what was Section 4659 and now appears as Section 32-903, Idaho Code.The deed from Joe to his mother is in accordance with these Sections of the statute and the recitals have been considered prima facie, but not conclusive, proof of the status of the acquired estate.126 Am.St.Rep. 124.

The presumption that all property acquired during marriage is presumed to be community property regardless in whose name the title is taken, if considered, does not persist as against a deed containing terms expressly complying with Section 32-903, I.C. Janes v. Gulf Production Co., Tex.Civ.App., 15 S.W.2d 1102 at 1109.

John Bowman, a cousin of respondent, testified appellant asked him to contact the owner and see if the property could be purchased in 1922 and asked him to 'hold it (the property or its purchase) up for two or three days until I can go back (Oakley) and see Merle (respondent) and get the money.'Then appellant came back and they made the deal; that she did not tell him she got the money, but she was going to Oakley to see him (Merle, respondent) to get the money.

Respondent testified with regard to the payment for this property as follows:

'Q.Would you state whether or not you furnished the money with which to make the original down payment on that property?A.Yes. sir.

'Q.How much did you furnish?A.All together about $1,900.00.

'Q.Now, at that time--A.The first time, about $1,900.00.

'Q.Where did you give that to Mrs. Bowman?A.She got over $400.00 the first time and around $1,500.00 the last time, about four days later.

'Q.Where was that?A. Oakley, Idaho.

'Q.Was that after she had been up here talking to Mr. Bowman?A.She came over here and made the deal and paid down. she said she paid $200.00 down, and she came back for the rest of the money, and I gave her nearly $1,500.00 more, and when she came back she said she had made a $850.00 payment all together.'

There was sharply contradictory evidence by the parties and their relatives to the effect Joe, at the time he purchased the property and transferred it to his mother, was, though small in statute, hard-working and industrious; and contra, that he only had intermittent and rather inconsequential jobs; likewise, that respondent was indolent and didn't care for his family; had no regular work, except gambling, and made little money to contribute for their necessities; that appellant largely, if not entirely, supported herself and the two boys; that respondent was indifferent to them and their welfare, etc., exhaustively denied by him.

Appellant contends there was no satisfactory tracing of the money, which respondent claimed he contributed for the purchase of the house and lot, and it would have been unnecessary and, therefore, inconsistent, if he had supplied the amounts claimed, for Joe to have given the mortgage.

Without elaborating upon the voluminous testimony with regard to the varied activities of appellant and respondent, support and lack of support by respondent, charges and counter charges of indolence, industry, conduct and shortcomings, suffice it to say they presented a situation which was peculiarly for solution and ultimate determination by the trial court.It would not avail appellant to further elaborate and would only tend to make a matter of permanent record, situations which the parties themselves, no doubt, do not care to have perpetuated.

The proof of the source of the funds and tracing them into the purchase price, when purchased and subsequent payment of the purchase price notes, was of the same quality and paucity on both sides.Swager v. Peterson, 49 Idaho 785, 291 P. 1049.

In actions of this kind, the trial court--'* * *, upon proper averments and under the express provisions of those sections of the Civil Code(sections 82-148) regulating actions for divorce, is invested with full power to determine the status of the property of both or each of the spouses,...