Gapsch v. Gapsch

• Decision Date: 24 November 1954
• Docket Number: No. 8208,8208
• Citation: 54 A.L.R.2d 416,76 Idaho 44,277 P.2d 278
• Parties: , 54 A.L.R.2d 416 Dollie Rena GAPSCH, Plaintiff-Respondent, v. Edward Henry GAPSCH, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 278

277 P.2d 278

76 Idaho 44, 54 A.L.R.2d 416

Dollie Rena GAPSCH, Plaintiff-Respondent, v. Edward Henry GAPSCH, Defendant-Appellant.

No. 8208.

Supreme Court of Idaho.

Nov. 24, 1954.

Cox, Ware & Stellmon, Lewiston, for appellant.

Earle W. Morgan, Lewiston, for respondent.

THOMAS, Justice.

Appellant, hereinafter referred to as husband, and respondent, hereinafter referred to as wife, were married on October 20, 1951. There were no children born of the marriage.

On the 6th day of August, 1953, the wife filed suit for divorce on the ground of extreme cruelty and sought a division of the community property. The husband answered, denying the allegations of the complaint and filed a cross-complaint for divorce on the ground of extreme cruelty. Upon issues thereafter joined, the court entered a judgment and decree on April 27, 1954, granting the wife a divorce on the ground of extreme cruelty and denying a divorce to the husband; the court also made disposition of the property which will be discussed hereinafter in some detail. From the judgment and the whole thereof the husband appealed on April 30, 1954.

On June 11, 1954, upon motion of the wife, the trial court made an order requiring the husband to pay the wife attorneys' fees and costs on appeal, as well as support money. From this order the husband also appealed on June 14, 1954.

The husband has made some thirty-three assignments of error many of which are overlapping and inclusive. We will not discuss separately each error assigned but will consider and dispose of all fundamental questions raised thereby. In brief, it is the contention of the husband that the evidence is insufficient to support a decree of divorce to the wife on the ground of extreme cruelty and that it will not support the division of property as made by the court; finally, that the order for attorneys' fees, costs and support money on appeal is not justified by and is inequitable under the facts and circumstances.

There is no merit to the contention that the evidence is not sufficient to support a judgment of divorce to the wife on the ground of extreme cruelty under sec. 32-605, I.C.

It would serve no useful purpose to detail and elaborate on the substantial and competent evidence of acts and a course of conduct on the part of the husband which, if believed by the trial court although denied by the husband, would inflict grievous mental suffering upon the wife. Howay v. Howay, 74 Idaho 492, 264 P.2d 691; De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94. Moreover, the trial court, not this court on appeal, resolves the conflicting evidence and determines the weight, credibility and inferences to be drawn from such evidence, Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063; furthermore, where there is substantial and competent, although conflicting evidence of such acts and conduct, the findings of the trial court will not be disturbed. Howay v. Howay, supra.

At the time of the marriage the husband had a bank account in Portland, Oregon, in the sum of $11,000; a checking account in a bank in Vancouver, Washington, amounting to $727.82; he owned an acreage and home at Vancouver, the furnishings thereon, a Chrysler automobile, a small motorboat, a Dodge pickup and a promissory note in the principal sum of $1,000, signed by the Alexander Lumber Company.

At the time of the marriage of said parties the wife had in a Seattle bank a checking account of $622.73 and a savings account of $512.58; also prior to marriage she had a life insurance policy with a cash surrender value of $2647.66 and owned a lot in Kansas City, Missouri, which she later sold for $324.45.

After the marriage the parties lived in Vancouver, Washington, until the latter part of March, 1952; on or about March 20, 1952, the husband and one Sam J. Alexander formed a partnership and, as partners, purchased the Lewis-Clark Garage, Inc., located at Lewiston, Idaho. At all times thereafter the parties to this action have resided in Lewiston, Idaho.

Subsequent to the marriage all the funds of the husband in the Portland bank were withdrawn and are fully accounted for, $5,000 of this sum was used to purchase DuPont stock which was later sold for $4,195.58 and the proceeds thereof deposited in the garage account and later withdrawn therefrom and paid on the purchase price of the garage; $1,400 was used to purchase a Plymouth car which was subsequently sold for $1,450; this latter sum, together with $300 advance rent on the Vancouver property, $145 received from the sale of a motorboat and $5,624.72, was deposited in the Vancouver account; the aggregate of the deposits of the separate funds and the proceeds from the sale of separate property of the husband, together with the $727.82 in this account at the time of the marriage, was $8,247.54; the wife deposited in the Vancouver account $3,735.31. Both parties checked upon the account for practically the first six months of their marriage.

The garage was purchased for $35,000; Mr. Alexander personally paid $15,000 of the purchase price. In addition to paying the $4,195.58 from the proceeds of the sale of the DuPont stock on the purchase price, the husband transferred title to a Chrysler car, which he owned prior to marriage, to the partnership which sold it for $3,054.42 and applied the proceeds of this sale on the purchase price; the husband also sold some separate personal property in Vancouver and purportedly applied $1,000 thereof on the purchase price; these payments so applied are not disputed; moreover, no part of these items was drawn out of the Vancouver account. The balance of the $15,000 paid by the husband on the purchase price, that is, the sum of $6,750, was drawn out of the Vancouver account. What portion of this latter sum is the separate property of the wife is disputed.

The partnership agreement expressly sets forth that the husband contributed 4/7ths of the capital necessary for the business and is entitled to 4/7ths of the assets and profits thereof, and that Alexander contributed 3/7ths of the capitol and has a 3/7ths interest in the assets and profits; however, the balance of the purchase price in the sum of $5,000 was paid through a loan of $20,000 secured by a chattel mortgage executed by the partners, individually and as partners, on April 1, 1952; $15,000 of the loan was placed in the partnership as working capital.

On April 3, 1952, the parties to this action opened a joint checking account in a Lewiston bank and deposited therein substantially all of the husband's $750 monthly salary checks and a few of the salary checks of the wife who worked at the garage for several months. There was also deposited in this account the $75 monthly rental which the husband received from his Vancouver property; $552.42 received from the sale of Conrad Bruce stock which was payable to both parties but purchased with the separate funds of the husband; some money which represented the balance of the proceeds of the sale of personal property of the husband at Vancouver; $1,540.05 representing the proceeds of the sale of a Dodge pickup which the husband owned prior to the marriage; $324.45 representing the proceeds of the sale of a lot in Kansas City, Missouri, which the wife owned prior to their marriage.

Immediately prior to the institution of the divorce action there was a balance in excess of $2,500 in the Lewiston account. $2,250 of this amount was drawn out of the account by the husband on July 9, 1953, at a time when the parties were having marital troubles; the husband did not deposit his salary checks for the last six months of 1953 in the account; none of the money from the Lewiston account was ever used in the business.

Both parties conceded and the court found that the funds deposited in the Vancouver bank were from the separate funds of each party and some from the profits and income of the separate property of the husband; the court specifically found that the wife deposited $3,735.31 of her separate funds therein and that the whole of this sum whent into the purchase of the garage business. The husband contends that the court erred in this respect because it is aserted the record shows the husband paid toward the purchase of the business $6,750 drawn on the Vancouver bank from his separate funds; $4,195.58, the proceeds of the sale of DuPont stock; $3,054.42, proceeds of the sale of a Chrysler car, and $1,000 payment on an auction sale of his personal property, aggregating $15,000; that at the most $2,415.42 of the separate funds of the wife included in the $6,750 drawn on the Vancouver account could be applied on the purchase price.

During the marriage, up to one month following the purchase of the business, as of April 1, 1952, the only income of the parties was $300 advance rent on the Vancouver property and $50 profit from the sale of the Plymouth car; hence, substantially all expenses of living and other numerous and miscellaneous withdrawals from the Vancouver account, as disclosed by the record, would be from the separate funds of the wife if the husband's position is correct. It is the duty of the husband to support the wife and there is no presumption that the wife's separate funds are used for community expenses. Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d 1159; Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999. It was not claimed that her separate funds were used to support the community. Under the record the trial court correctly found and concluded that $3,735.31 of the separate funds of the wife deposited in the Vancouver bank was there when the $6,750 was withdrawn and applied on the purchase price and was used in purchasing the business.

While the husband exercised some management and control over such funds of the wife, perhaps with her consent, no intent on the part of the wife to make a gift thereof to the husband or to change its status is claimed, shown...