Hammond v. Hammond
| Decision Date | 12 December 1968 |
| Docket Number | No. 10117,10117 |
| Citation | 448 P.2d 237,92 Idaho 623 |
| Parties | Irene A. HAMMOND, Plaintiff-Appellant, v. Harley J. HAMMOND, Defendant-Respondent. |
| Court | Idaho Supreme Court |
J. H. Felton, Lewiston, for plaintiff-appellant.
Blake, Givens & Feeney, Lewiston, for defendant-respondent.
Plaintiff (appellant) Irene A. Hammond, and defendant (respondent) Harley J. Hammond, intermarried August 20, 1939. Of four living children, two were minors at the time this action was instituted.
December 6, 1966, plaintiff through her attorney, William Stellmon, brought this action for divorce on the ground of extreme cruelty. Defendant answered and counterclaimed for divorce, also on the ground of extreme cruelty.
Responsive to plaintiff's motion therefor, the court on March 6, 1967, ordered defendant to pay plaintiff temporary support and in addition temporary attorney's fees in the sum of $400.00.
March 7, 1967, the court granted Mr. Stellmon's motion to withdraw as plaintiff's counsel 'on the grounds and for the reason that said plaintiff and said attorneys cannot agree on the subsequent actions to be taken and the methods to be followed in the prosecution and defense of defendant's counterclaim in the action.' Thereafter present counsel J. H. Felton represented plaintiff.
The cause was tried before the court April 24 and 25, 1967, and additional evidence on the value of community property was introduced June 26, 1967. Judgment was entered August 1, 1967, granting a divorce to plaintiff on the ground of extreme cruelty, and awarding to her custody of the minor children.
The court found that the parties had acquired as community property all of the stock of the H. J. Hammond Company, a family-owned corporation; lots 14 and 15, in block 7, Town of Elk City, Idaho (each lot 50 150 ); and miscellaneous items of household furniture and fixtures. The court also found that the H. J. Hammond Company owned various items of logging equipment; that the indebtedness of the company exceeded the value of its assets, making it difficult or impossible to divide in kind; that in lieu of division in kind, the plaintiff be awarded the items of household furniture and fixtures which she had in possession, and such other items as she may select; that in addition thereto plaintiff was awarded the sum of $12,000.00, payable in monthly installments of $200.00 each in lieu of a division of the balance of the community property.
Defendant was awarded the stock of the H. J. Hammond Company and the two lots in Elk City, and defendant was required to pay all community debts existing as of December 2, 1966, and to pay to the plaintiff $100.00 per month per minor child for child support. Defendant was also required to pay to plaintiff's attorney $1,000.00 as attorney's fees.
By her first two assignments of error, plaintiff contends that the trial court forced her to go to trial without providing her with funds for the preparation of her case, and prevented her from access to community funds for the preparation of her case equal in amount to that available to and expended by defendant. Plaintiff cites no authority in support of this contention. No motion was made by plaintiff for an allowance by the court of funds to employ appraisers or accountants. The record shows that she was awarded $400.00 temporary attorney's fees prior to trial, and the further sum of $1,000.00 attorney's fees in the judgment. The advisory fee schedule of the Idaho State Bar Association suggests a minimum fee of $400.00 for a contested divorce action. Having regard to the circumstances of these parties, the nature of the issues involved, and the absence of a motion for additional expense allowance, we cannot say that the trial court abused its discretion by failing to award more than $1,400.00 for the services of plaintiff's attorneys. I.C. § 32-704, and Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).
Plaintiff also contends the trial court erred in failing to award to her at least one-half of the community property and that the court erred in failing to award to her more than one-half of the community property, the divorce having been granted on the grounds of extreme cruelty.
The statute provides that:
Under this statute we have said that the trial court is vested with the discretionary power to assign the community property in such proportions as the court deems just. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967).
Plaintiff has not demonstrated any serious inequity in the court's distribution of the community property. Ample opportunity was afforded for the presentation of evidence at the trial on the value of community assets and also upon the adjourned hearing in June, two months later, and on this appeal. Nor has plaintiff supported her claim of inequity by argument based upon the record. The records of the company were available to plaintiff and to her attorney for examination and copying at least as early as April 24, 1967, and two months prior to the closing of testimony at the final hearing on June 26. Error will not be presumed by this court on appeal, but must be affirmatively established by the appellant upon the record. State v. Polson, 92 Idaho 615, 448 P.2d 229, December 9, 1968; Morrison v. Quality Produce, Inc., 92 Idaho 448, 444 P.2d 409 (1968).
The trial court did not find separately the specific values of the items of community property. This omission has not been assigned as error, or has any authority or argument been directed thereto by plaintiff. Under such circumstances the court's action, or lack thereof, will not be reviewed. Supreme Court Rules, rule 41; Byington v. Clover Club Potato & Produce Company, 91 Idaho 165, 418 P.2d 206 (1966).
There is evidence in the record which, if believed, would indicate that the award to plaintiff of $12,000.00 in addition to the items of furniture and fixtures would constitute more...
To continue reading
Request your trial
-
Cheney v. Palos Verdes Inv. Corp.
...source, but rather an accountant's summary, of statements provided regularly by a fuel company. See also Daniel v. Moss, supra; Hammond v. Hammond, supra. The account records here were made in the ordinary course of plaintiffs' business and not in preparation for trial and we hold that the ......
-
Gardner v. Fliegel
...it is fundamental that error will not be presumed but must be shown affirmatively by the appellant on the record. Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968), Mahaffey v. State, 87 Idaho 233, 392 P.2d 423 (1964). Neither allegation of error, therefore, merits further A number of a......
-
Huskinson v. Huskinson
...can be proved from the financial records of the corporation. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967); Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968). In Hammond v. Hammond, supra, the appellant also contended that financial records prepared without audit could not be a......
-
Christensen v. Rice
...of the record at trial. In addition, business records are admissible even though they contain minor alterations. See Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968). Likewise, it is not imperative that the declarant at trial have personal knowledge of the content of the business [i]t ......