Despain v. Despain
| Decision Date | 05 July 1956 |
| Docket Number | No. 8398,8398 |
| Citation | 78 Idaho 185,300 P.2d 500 |
| Parties | Sarah LaRue Simonson DESPAIN, Plaintiff-Appellant, v. James DeVerl DESPAIN, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Alvin Denman, Idaho Falls, for appellant.
Gee & Hargraves, Pocatello, for respondent.
The parties to this action were divorced by the decree of the District Court of Franklin County on May 17, 1944. The custody of a female child whose age is not disclosed was awarded to the plaintiff, the wife. The decree contained a provision requiring the defendant, husband, to pay $20 per week 'for the support of the plaintiff and said child'.
The plaintiff intermarried with one Allen in the year 1945 as the court found and as both parties state in their briefs. However, the plaintiff twice testified her marriage to Allen was in January, 1946. There was no other proof of the date. The marriage to Allen was terminated by divorce and the plaintiff in March, 1947, intermarried with one Strand. That marriage had not been dissolved at the time of trial.
The defendant removed to California but when is not made to appear. It may be inferred from statement made in affidavit filed by him that his removal was not later than shortly after the entry of the decree of divorce and that he has remained a resident of that state.
In 1952 the plaintiff instituted in California a proceeding of undisclosed character to collect moneys due under the decree of the Idaho court resulting in the payment by the defendant of the sum of $200 in December of that year. On March 10, 1953, the Superior Court of Alameda County, California, in proceeding instituted by the plaintiff under the Uniform Reciprocal Enforcement of Support Act, ordered the defendant to pay $30 per month for the support of the child. The defendant has made the payments called for by that order.
On May 7, 1954, the plaintiff commenced an action in California to establish the Idaho decree as a decree of the courts of that state and to recover judgment for the aggregate of the sums then due and unpaid. The California court recessed the trial of that action until the Idaho court had determined the amount remaining unpaid on the divorce decree and what portion of the judgment belonged to the plaintiff and what portion to the child. On April 5, 1955, the present proceeding was instituted to obtain such determinations.
The defendant countered by motion for order modifying the decree so as to provide for the payment by him of $30 per month for the support of the child and that all provisions for the payment of alimony be stricken as of the date of plaintiff's first remarriage. The defendant made no other response to plaintiff's motion. He did not plead the bar of the statute of limitations or any facts tending to disclose a prejudice to him through the tardy efforts of the plaintiff to obtain the determinations sought or otherwise to enforce the decree.
The plaintiff testified that the defendant paid $35 in May, 1945, the $200 referred to in December, 1952, and $30 per month from April 1, 1953, under the order of the California court of March 10, 1953; and testified also as to the dates of her remarriages. The defendant did not appear in person and offered no testimony. However, his counsel cross-examined the plaintiff.
The findings of fact of the trial court are incomplete and wholly inadequate. The court did not find as facts what sums had been paid by the defendant or when or the amount which remained unpaid either under the rule stated in the court's conclusions or otherwise. The findings of fact were two in number and are as follows:
'That the plaintiff failed to notify the defendant of her remarriages; and both plaintiff and defendant failed to ask for a redetermination of the defendant's responsibilities under the decree until she filed said motion' and
'That the plaintiff obtained a second judgment in the State of California March 10, 1953, for the support of the minor child; that she remarried in 1945; that the plaintiff filed said motion in February, 1955.'
The court concluded: That all remedies of the plaintiff for the collection of any of the amounts due under the decree prior to February, 1949, were barred by the statute of limitations; that both parties were guilty of laches by failing to ask for a redetermination of the defendant's responsibilities under the decree of divorce; that the enforcement of the decree of divorce was tolled or offset on March 10, 1953, by the order of the California court in the Reciprocal Enforcement of Support proceedings; that the award of $20 per week should be divided equally between the plaintiff and the minor child; that the remarriage of the plaintiff terminated her right to alimony; that the defendant be required to pay $10 per week from February 1, 1949, to March 10, 1953, less the sum of $200 (paid in December, 1953) and that the plaintiff should have judgment for such sum. The order of the court was: '--that the defendant pay the plaintiff the sum of $10.00 per week from February, 1949, to March 10, 1953, less the amount paid between those dates amounting to $200.00'. The amount of the judgment was not more definitely stated.
The plaintiff has appealed. Among the assignments of error are: (1) The conclusion that the state of limitations had barred recovery of all payments due prior to February, 1949; (2) The conclusion that the plaintiff was guilty of laches barring recovery; and (3) the conclusion that the proceeding in the California court under the Uniform Reciprocal Enforcement of Support Act amounted to a modification of the Idaho decree binding upon the Idaho court. We regard these assignments as presenting decisive questions.
The transcript fails to disclose that the defense of the bar of the statute of limitations was at any time or in any manner asserted in the trial court. This court has consistently adhered to the rule that the statute of limitations is one of repose and personal to the defendant; that the defendant may, by demurrer, plead that defense if its availability appears on the face of the complaint, Sec. 5-808, I.C., or by answer if it does not so appear; that the defense is waived unless so pleaded....
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