Chugg v. Chugg

• Decision Date: 09 February 1971
• Docket Number: No. 10480,10480
• Parties: Janet G. CHUGG, Plaintiff-Respondent, v. Raymond J. CHUGG, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 891

480 P.2d 891

94 Idaho 45

Janet G. CHUGG, Plaintiff-Respondent, v. Raymond J. CHUGG, Defendant-Appellant.

No. 10480.

Supreme Court of Idaho.

Feb. 9, 1971.

Frank M. Rettig, Jerome, for defendant-appellant.

Benoit, Benoit & Alexander, Twin Falls, for plaintiff-respondent.

McFADDEN, Justice.

On Rehearing

The petition for rehearing of Raymond J. Chugg, the defendant-appellant, was granted and certain limited aspects of the appeal were re-argued.

This action for divorce was instituted by the plaintiff, Janet G. Chugg, against her husband, Raymond J. Chugg, the defendant. By her complaint, the plaintiff sought a dissolution of the marriage on the grounds of extreme cruelty, custody of the two minor children, division of the community property, and alimony and support for the minor children. Defendant answered his wife's complaint, denying the allegations of extreme cruelty and other allegations of her complaint, and by counterclaim also sought division of the parties' property and prayed that the divorce be awarded to him on the grounds of extreme cruelty inflicted upon him by his wife. In his counterclaim he acknowledged that the minor children should be in his wife's custody and that he was agreeable to paying support for each of the two minor children during their minority.

Following a trial on the issues presented by the pleadings, the court, sitting without a jury, entered its findings of fact, conclusions of law and judgment granting a divorce to the plaintiff on the grounds of extreme cruelty. The court divided the community property between the parties, awarding each of the parties as his or her separate property that personal property then in his or her possession. The court awarded the real property (ranch property) and the pumps and sprinkler system to the defendant, who was ordered to pay to the plaintiff for her interest the sum of $37,117.67, in six annual installments of $6,186.28 plus accrued interest at 6% per annum. Custody of the two minor children was awarded to the plaintiff, and the defendant was ordered to pay $125.00 per month for the support of each of the two children. The oldest child had reached majority at the time of this appeal. ¹ The court also awarded plaintiff alimony at the rate of $450.00 per month, and in the event of her remarriage the alimony was to terminate.

Defendant timely filed a motion to delete or amend the findings of fact and conclusions of law and a motion for new trial. The trial court, after hearing the parties, amended certain findings and conclusions and entered its amended decree of divorce. The principal effect of the amendment to the decree was to limit the monthly alimony payable to plaintiff to a period ending in June 1975, unless the plaintiff should sooner die or remarry.

Following entry of the amended decree this appeal was perfected by the defendant. By his assignments of error, which are directed to specific findings of fact and conclusions of law, the defendant questions the correctness of the trial court's decision in three areas: (a) the award of divorce to the plaintiff instead of to the defendant; (b) the award of alimony to plaintiff; and (c) the valuation placed on the community property of the parties. Error is also assigned to the denial of defendant's motion to delete or amend the findings of fact and conclusions of law and to the denial of his motion for new trial.

Two findings of fact assigned as error pertain to the grounds for awarding the divorce to the plaintiff rather than to the defendant. Recitation of the specific facts appearing in the record which support the challenged findings of fact would add nothing to this opinion. Suffice it to say that this case was ably presented to the trial court by counsel representing both parties, and the facts, and each party's version of them, were fully developed for that court's consideration.

The defendant argues that cruelty provoked by the complaining party's own misconduct is not cruelty within the meaning of the statute specifying the grounds for divorce. See Hiltbrand v. Hiltbrand, 68 Idaho 275, 193 P.2d 391 (1948); Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967). In Spofford v. Spofford, 18 Idaho 115, 108 P. 1054 (1910), this court stated:

'The party to the marital contract, who by his acts and conduct thus invites a remonstrance, protest, or demonstration from the other party to the contract, must expect to exercise a degree of patience and forbearance which the law and good morals would not expect of him under more favorable circumstances.' 18 Idaho at 120, 108 P. at 1056.

Even if it could be said that plaintiff's conduct imposed upon her the obligation to exercise more patience towards her husband than ordinarily would be expected, it cannot be said that she must subject herself to the physical violence which occurred in this case. The cases cited by defendant which denied a divorce on the grounds that the alleged cruelty was provoked by the complainant did not involve the physical violence involved here. Moreover this court has stated that the provoking party need not endure the reprisal forever. Spofford v. Spofford, supra. In Hiltbrand v. Hiltbrand, supra, this court stated:

'No fixed legal rule for determining the existence of extreme cruelty in any given case can be laid down. The judge who tries the case and has the parties before him for observation in the light of the evidence, is the one to whom the law commits in the first instance, the determination of whether or not extreme cruelty has been established, and this court will not disturb the findings of the trial court unless there has been a want of ordinary good judgment and an abuse of discretion by that court.' 68 Idaho at 279-280, 193 P.2d at 393.

See also Huskinson v. Huskinson, 92 Idaho 920, 453 P.2d 569 (1969); Parks v. Parks supra; Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

The trial court found in favor of the plaintiff, and against the defendant, on the issue of extreme cruelty, stating

'None of defendant's inferences and implications of misconduct on the part of plaintiff were established; in fact, such inferences are rebutted by substantial and credible evidence.'

We find no error in this regard.

Concerning the valuation of the parties' property by the trial court, which formed the basis for that part of the judgment ordering the defendant to pay plaintiff the sum of $37,117.67 in six annual installments, the record reflects that the trial court had before it evidence which came basically from three sources. First a certified public accountant submitted two balance sheets as of September 30, 1968, one using an accelerated method of depreciation and reflecting a net worth of $60,186.33, and the other using straight line method of depreciation and reflecting a net worth of $66,592.83. This accountant, in arriving at these net worth figures, deducted some $14,392.43 for income tax for 1968. The copy of the 1968 tax return, however, reflected that only about $1,700.00 tax was paid. Secondly, the court had before it a financial statement submitted by the defendant to his bank as of November 1967, which reflected that the real estate owned by the parties was worth $121,640.00, subject, however, to a mortgage of $32,000.00. Third, the trial court had before it the testimony of a real estate appraiser, who appraised the value of the property, buildings, pump and sprinklers to be $83,000.00, subject, however, to the same $32,000.00 mortgage. The trial court disregarded the testimony of this appraiser.

Valuation of any property is relatively imprecise procedure. Different appraisers and witnesses naturally assign different valuations to the same items of property, and when the tribunal which has to make the ultimate determination as to valuation is faced with such variations it must resolve the conflicts. The record supports the valuation arrived at...