Fix v. Fix

• Decision Date: 09 December 1993
• Docket Number: No. 20315,20315
• Citation: 125 Idaho 372,870 P.2d 1331
• Parties: Shirley Ann FIX, Plaintiff-Respondent, v. Herbert M. FIX, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1331

870 P.2d 1331

125 Idaho 372

Shirley Ann FIX, Plaintiff-Respondent, v. Herbert M. FIX, Defendant-Appellant.

No. 20315.

Court of Appeals of Idaho.

Dec. 9, 1993.

Rehearing Denied Feb. 3, 1994.

Petition for Review Denied April 14, 1994.

Risch, Goss & Insinger, Boise, for defendant-appellant. John Theil argued.

Lojek, Gabbert & Strother, Boise, for plaintiff-respondent. Jeffrey A. Strother argued.

WALTERS, Chief Judge.

Mr. Herbert M. Fix (Herbert) appeals from a magistrate's decision, affirmed by the district court, denying his motion to terminate what he asserts are spousal support payments he has been making to his ex-wife, Mrs. Shirley Ann Fix (Shirley). The magistrate determined that the payments were part of the community property division and therefore could not be modified. We affirm.

The pertinent facts are as follows. Herbert and Shirley were married in 1965 and divorced in 1979 in an action filed by Shirley. Before, during and after the marriage Herbert was a member of the United States Marine Corps. He retired as a colonel in 1982 after twenty-six years of military service. Under Idaho law at the time of the divorce, military retirement benefits were community assets to the extent they were earned during marriage. ¹ See Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975). Under the terms of the divorce decree, Shirley agreed to waive any right she had to Herbert's military retirement benefits. As consideration for the waiver, Herbert agreed to provide specified amounts of money to Shirley and her children, and to name Shirley as the beneficiary on certain life insurance policies. Neither party appealed the terms of the decree.

After an unsuccessful attempt to reconcile, the parties filed a stipulation to modify the divorce decree on March 16, 1981. Among other things, Herbert agreed to pay Shirley:

3. ... the sum of FOUR HUNDRED DOLLARS ($400.00) per month, commencing on the 1st day of January, 1981, and continuing through the 1st day of June, 1981. Commencing with the 1st day of July, 1981, [Shirley] is to receive one-third ( 1/3) of [Herbert's] military retirement income, however, should [Herbert] not retire in June of 1981, as presently contemplated, [Herbert] agrees to pay [Shirley] the sum of EIGHT HUNDRED DOLLARS ($800.00) per month, commencing with the 1st day of July, 1981, said EIGHT HUNDRED DOLLARS ($800.00) per month payments to continue until [Herbert] does retire, at which time the payments to [Shirley] in the amount of one-third ( 1/3) of [Herbert's] retirement pay shall commence. ....

5. The parties have entered into this Stipulation for Modification of Decree of Divorce following an attempt at reconciliation and after having reconsidered the total value of the community property acquired by them during their marriage and the property acquired by [Herbert] during the time they were residing together in an attempt at reconciliation.

On March 16, 1981, the magistrate entered an amended divorce decree incorporating most of the terms of the stipulation. Neither party appealed. Herbert retired in 1982 and Shirley received her share of the retirement benefits under the decree until 1990, when Herbert cancelled her payments.

On October 10, 1990, Herbert moved to terminate the payments set forth in the amended decree on the grounds that they were spousal support and that changed circumstances warranted termination. Shirley responded by filing a motion for contempt, claiming Herbert had wilfully violated the amended decree. On January 16, 1991, Shirley moved to dismiss Herbert's motion on the ground that the provisions in the amended decree discussing retirement benefits established that the benefits were a division of community property and, therefore, nonmodifiable. Shirley further alleged that the doctrine of res judicata precluded reconsideration of the amended decree.

A hearing was held in January, 1991. Thereafter, the magistrate determined that Herbert's monthly payments to Shirley "were consideration for Mrs. Fix's interest in the military retirement." Upon concluding that the payments were consideration for Shirley's interest in community property, the magistrate held that the payments were not modifiable. Judgment was entered for Shirley for $9,144, the amount of retirement income Herbert prevented Shirley from receiving in 1990. ²

Herbert appealed to the district court and Shirley cross-appealed. ³ For the first time, Herbert argued that if the retirement benefit provision of the 1981 amended decree was a property division, rather than a provision for support payments, the magistrate did not have jurisdiction to enter that amended decree in response to the parties' stipulation. The district court disagreed and affirmed the magistrate's decision that the allocation of the retirement benefits was a nonmodifiable division of community property. Herbert appeals.

First, we note our standard of review. When presented with an appeal from an order of the district court reviewing a magistrate's decision, we examine the record independently, but with due regard for, the district court's intermediate appellate opinion. McNelis v. McNelis, 119 Idaho 349, 351, 806 P.2d 442, 444 (1991); Campbell v. Campbell, 120 Idaho 394, 398, 816 P.2d 350, 354 (Ct.App.1991). We will uphold the findings of fact made by the magistrate if they are supported by substantial and competent, although conflicting, evidence. McNelis, supra; Campbell, supra. However, we exercise free review over the magistrate's application of law to the facts as found. Campbell, supra. Questions regarding a court's jurisdiction present issues of law requiring free review. Lockhart v. Department of Fish and Game, 121 Idaho 894, 895, 828 P.2d 1299, 1300 (1992).

At the outset, we conclude that the magistrate in the instant case correctly determined that the monthly payments to Shirley were consideration for her interest in the military retirement benefits. The military pension Herbert earned during the marriage is community property. Ramsey, 96 Idaho at 676, 535 P.2d at 57; Brooks v. Brooks, 119 Idaho 275, 278, 805 P.2d 481, 483 (Ct.App.1990). Upon divorce, each spouse is entitled to control of his or her share of community property within a reasonable time. Ramsey, 96 Idaho at 679, 535 P.2d at 60. In the 1979 divorce decree, Shirley waived her one-half share of the retirement benefits and Herbert agreed to consideration, a large portion of which Herbert did not have to pay because Shirley's son did not attend veterinarian school--an expense which Herbert had agreed to pay. The parties' expressed motive in replacing Shirley's waiver with monthly payments was that they had reconsidered the total value of the community property. By accepting monthly payments, Shirley relinquished a substantial interest in her share of the community. Although in letters and tax returns Herbert and Shirley referred to the payments as alimony, those references are not conclusive evidence of the character of the payments because the payments were an integral part of the property division. See Kimball v. Kimball, 83 Idaho 12, 356 P.2d 919 (1960). Even if characterized as "alimony" or "spousal support," the payments represent reciprocal consideration for community property, therefore they are part of the property division and are not subject to modification. Id.

Having reached this conclusion, we must still determine whether the magistrate erred in 1981 when the divorce decree was amended pursuant to the parties' stipulation to allow the payments to Shirley. We recognize that Herbert did not raise this issue until he appealed to the district court. Generally, issues not raised at the trial court level will not be considered on appeal. Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 999 (1991); Brooks, 119 Idaho at 278, 805 P.2d at 484. Herbert, however, raises an issue concerning the magistrate's jurisdiction. Questions of jurisdiction present an exception to the general rule and allow the appellate court to consider the issue even when raised for the first time on appeal. Hoppe v. McDonald, 103 Idaho 33, 35, 644 P.2d 355, 357 (1982); Matter of Von Krosigk, 116 Idaho 520, 521, 777 P.2d 742, 743 (Ct.App.1989).

It is established law in Idaho that divisions of property in a divorce decree, if not appealed by the parties, "are final, res judicata, and no jurisdiction exists to modify the property provisions...." Ross v. Ross, 117 Idaho 548, 552, 789 P.2d 1139, 1143 (1990); McBride v. McBride, 112 Idaho 959, 961, 739 P.2d 258, 269 (1987); Lowe v. Lowe, 92 Idaho 208, 210, 440 P.2d 141, 143 (1968). On the other hand, spousal support (also called maintenance or alimony), child support and child custody are modifiable. McBride, 112 Idaho at 961, 739 P.2d at 269. An exception to the rule precluding modification of a property division applies if the division was accomplished by fraud, coercion, or overreaching. McBride, 112 Idaho at 961, 739 P.2d at 269. No such wrongdoing was alleged in this case. Certain jurisdictions allow the parties in a divorce action to vacate or amend a previously entered judgment in favor of a stipulated agreement. See 49 C.J.S. Judgments § 230(d) (1947); 46 AM.JUR.2d Judgments § 702 (1969); J.A. Bock, Annotation, Court's Power to Vacate Decree of Divorce or Separation Upon Request of Both Parties, 3 A.L.R.3rd 1216 (1965). In Idaho, however, a lack of jurisdiction may not be cured by means of a stipulation or waiver by the parties. State v. Rhoades, 121 Idaho 63, 70, 822 P.2d 960, 967 (1991); Bowlden v. Bowlden, 118 Idaho 84, 86, 794 P.2d 1140, 1142 (1990). It would appear facially then, that Herbert is correct in asserting that the magistrate, in 1981, did not have jurisdiction or the power to amend the divorce decree and order a modified property division.

Shirley, however, argues that I.R.C.P. 60(b)(5) allowed the magistrate in 1981 to modify what she and the magistrate...