Evans v. Evans
| Decision Date | 29 April 1969 |
| Docket Number | No. 10148,10148 |
| Citation | 453 P.2d 560,92 Idaho 911 |
| Parties | Herman P. EVANS, Plaintiff-Respondent, v. Marguarite A. EVANS, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Smith, Miller & Weston, Caldwell, for defendant-appellant.
Schiller, Young & Williams, Nampa, for plaintiff-respondent.
Herman Evans, planitiff-respondent, brought this action for divorce from his wife, Marguarite Evans, defendant-appellant, on grounds of extreme cruelty. He sought a division of the property claiming that most of it was his separate property. Marguarite Evans answered, denying the allegations of the plaintiff. She also cross-claimed for divorce and alleged that most of the property was community. Prior to the trial the court appointed a certified public accountant as master to assist the court in tracing the property and in making an accounting of the assets of the parties.
The trial court after an extensive trial, devoted almost entirely to the determination of what were the assets of the estate and their character, granted a divorce to the wife on grounds of extreme cruelty, divided the property between the parties, finding that the great majority was the husband's separate property, divided the community property equally, and granted the wife $150.00 a month alimony. The court also ordered the respondent to pay all court costs including the accountant's fee of $877.50 and attorney's fees in the amount of $1,500.00. The wife thereupon appealed from the decree insofar as the division of the property was concerned; the amount of alimony awarded to her by the court and the amount of attorney's fees. The appellant's main specifications of error are to the following amended findings of fact made by the trial court.
'V.
'That at the time of this marriage of the parties hereto the plaintiff and counter-defendant owned a separate estate of a net value in excess of the sum of $187,034.78; that at the same time the defendant and counter-claimant owned a separate estate of approximately $4,000.00.
'IX.
'That commencing with the marriage of the parties to the above entitled action the plaintiff loaned the credit of his separate estate to the community and that throughout the marriage said separate estate acted and was used as security for the betterment of the community; that further the plaintiff did not at any time intend that his separate estate should be considered as a gift to the community.
'X.
'That the separate estate of the plaintiff did not lose its identity as separate property, neither did said property become comingled to such an extent that it lost its identity.
'XIII.
'That the defendant and cross-plaintiff devoted 13 years of her life to the marriage between herself and the plaintiff and counter-defendant; that the plaintiff and counter-defendant has the ability to pay alimony to said defendant and cross-plaintiff until her death or until she remarries; that the sum of $150.00 per month as and for alimony is a reasonable sum to be paid the defendant and cross-plaintiff until her death or remarriage.
'XV.
'That the net value of the community estate of the parties to this action is the sum of $33,008.72 together with the household furniture and fixtures.
'XVI.
'XVIII.
The appellant wife also claims that the court erred in making conclusions of law and entering judgment based on the amended findings of fact objected to.
The pertinent facts are as follows: The parties were married at Payette, Idaho, on May 6, 1954. There were no children born during the marriage. The wife was 59 years old at the time of the filing of the divorce action and the husband was 54 years of age. At the time of the marriage the husband was engaged in the automobile business, the Evans Motor Company. His previous wife had died and the decree of distribution in the estate was entered October 29, 1953. Page 1 of Joint Exhibit 1A, which was a report by the appointed master, shows that the husband's separate property was worth $202,102.76. The appellant wife had also been previously married and her separate property as set forth in the divorce decree dated July 9, 1951, was listed in Joint Exhibit 1A. At that time her separate property amounted to $28,500.00 but by the time of her marriage to the respondent it had been reduced to some $13,000.00 consisting of the household furniture, fixtures, equipment, etc., one piece of real property worth $4,000.00 and an interest in an automobile which she had purchased shortly before the marriage from the respondent. The piece of real property worth $4,000.00 was later transferred by the appellant to herself and to the respondent approximately four years after the marriage and the court found it therefore became community property. The household furnishings of the parties were divided by agreement during the pendency of the divorce action. On August 1, 1958, the respondent and appellant purchased a cattle ranch at Ola, Idaho, from Leo Marsters. The purchase price was $250,000.00, against which there was a mortgage of $106,500.00 which the purchasers assumed. The balance of the purchase price was paid by the respondent from the assets of the Evans Motor Company and two other pieces of separate property which the respondent owned.
At the time that the ranch was purchased by the parties the respondent entered into a personal property exchange agreement with Leo Marsters in which no purchase price was placed on the equipment. The agreement contained a list of farm equipment that was traded for used cars also listed in the agreement. The agreement for the sale exchange of real estate between the Evans's and Leo Marsters contained a provision which stated that it recognized that the property involved might be the separate property of either party and it was agreed that where the names Marsters or Evans should appear it should be construed to apply in the plural or singular as the case may be. The assumption of the mortgage held by John Hancock Mutual Life Insurance Company was signed by both Mr. and Mrs. Evans. The parties operated the property until March 13, 1962. During that time the operations of the ranch were financed through the Production Credit Association. In 1959 a new ranch house was constructed and an additional mortgage of $14,500.00 was taken out by the Farmers Home Administration. The various payments on these two mortgages are set out in Joint Exhibit 1A as follows:
'PAYMENTS ON THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY MORTGAGE ON THE OLA RANCH
'After Mr. Evans commenced operations at the Ola ranch, he set up a bank account specifically for ranch operations. For a brief period of time the ranch expenses were paid from an already existing bank account that was used by Mr. Evans for his cattle trading transactions and other business income and expenses outside the scope of the Evans Motor Company. The following schedule breaks down the payments of interest and principal on the John Hancock Mortgage:
Date Amount Explanation
---- ------ -----------
January 10, 1959 3,500.00 Principal only, the interest payment
was made by Marster. 2,000.00 of
this amount came from the cattle
trading account 1,500.00 from the
Evans personal account
January 1, 1960 5,150.00 Interest only, payment from the ranch
account
September 29, 1960 3,707.90 Principal 3,500.00, interest 207.90
Paid from the ranch account
December 30, 1960 8,475.00 Principal 3,500.00, interest 4,975.00
Paid from the ranch account.
December 26, 1961 8,300.00 Principal 3,500.00, interest 4,800.00.
Paid from the ranch account.
When Mr. Evans acquired the Ola ranch he set up the financing of the ranch operations with Production Credit Association. Included in the annual budget with PCA were the above listed mortgage principal and interest payments.
During 1959 a new ranch house was constructed on the Ola ranch and an additional mortgage of $14,500.00 was taken out by the Farmers Home Administration. The following payments were made on this mortgage:
Date Amount Explanation
---- ------ -----------
1959 600.00 156.58 principal, 443.42 interest
1960 1,104.04 552.38 principal, 551.65 interest
1961 1,104.04 531.15 principal, 572.88 interest
The 1960 and 1961 payments were included in the PCA Budget. All PCA and Mortgage payments so budgeted were deposited to the ranch account. The 1959 payment came from the ranch account.'
On March 13, 1962 Mr. and Mrs. Evans sold the Ola ranch and acquired some property in Nampa, Idaho from Claude and Lois Ellison. The payments for the Nampa property were made as shown in Joint Exhibit 1A as follows:
'SALE OF OLA RANCH AND ACQUISITION OF NAMPA PROPERTY
'Sale price (Ranch and Cattle) dated March 13, 1962 (Note #1) $345,000.00
Parties to contract-Herman P. Evans and Marguarite A. Evans. Claude L. Ellison and Lois Ellison.
Payable
-------
Cash down payment 10,000.00
Assumption of John
...To continue reading
Request your trial
-
Eliasen's Estate, Matter of
...of the property in the decedent's estate was separate property. Houska v. Houska, 95 Idaho 568, 512 P.2d 1317 (1973); Evans v. Evans, 92 Idaho 911, 453 P.2d 560 (1969). We find no As to the cattle, this court held in Ripatti v. Ripatti, supra, that where a cattle herd is built up and increa......
-
Olsen v. Olsen
...v. Simplot, 96 Idaho 239, 246-47, 526 P.2d 844 (1974); Speer v. Quinlan, 96 Idaho 119, 132, 525 P.2d 314 (1974); Evans v. Evans, 92 Idaho 911, 920, 453 P.2d 560 (1969); Saviers v. Saviers, supra; Loveland v. Loveland, 91 Idaho 400, 403, 422 P.2d 67 (1967); Losee v. Losee, 91 Idaho 77, 79, 4......
-
Sheppard v. Sheppard
...(when wife borrowed money solely on credit of her separate property, the borrowed money remains her separate property); Evans v. Evans, 92 Idaho 911, 453 P.2d 560 (1969). Of the $10,000 in claims settlement moneys, $8,000 belonged to the children, only $2,000 belonged to appellant. The cour......
-
Cook v. Cook
...recognized that the existence of separate property could be established by the "accounting method" of tracing, see Evans v. Evans, 92 Idaho 911, 453 P.2d 560 (1969); Houska v. Houska, 95 Idaho 568, 512 P.2d 1317 (1973); Houska v. Houska, 97 Idaho 316, 543 P.2d 869 (1975), it held that such ......
-
§ 11.03 Transmutation of Property by Commingling
...Arizona: Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948). Idaho: Houska v. Houska, 95 Idaho 568, 512 P.2d 1317 (1973); Evans v. Evans, 92 Idaho 911, 453 P.2d 560 (1969). New Mexico: Moore v. Moore, 71 N.M. 495, 379 P.2d 784 (1963). See generally, Reppy and Samuel, Community Property in ......
-
§ 6.05 Rents and Profits from Separate Property
...treated differently from cash dividends. See Lynam v. Gallagher, 526 A.2d 878 (Del. 1987). See § 6.04[5] supra.[221] See: Evans v. Evans, 453 P.2d 560 (Idaho 1969); Gapsch v. Gapsch. 277 P.2d 278 (Idaho 1954). See also, Weilmunster v. Weilmunster, 858 P.2d 266 (Idaho App. 1993).[222] Marria......