Heslip v. Heslip
| Decision Date | 03 November 1953 |
| Docket Number | No. 7974,7974 |
| Citation | 262 P.2d 999,74 Idaho 368 |
| Parties | HESLIP v. HESLIP. |
| Court | Idaho Supreme Court |
James W. Wayne, Coeur d'Alene, Bandelin, Bandelin & Ponack, Sandpoint, for appellant.
Fred F. Kondo, Priest River, for respondent.
Mary Alice Heslip, plaintiff in the trial court, appellant here, brought an action for a divorce against Donald Earl Heslip, defendant in the trial court, respondent here, on statutory grounds of extreme cruelty. Issues were joined and decree of divorce granted her. Property of the parties was by the decree awarded and provision made for the support of a child the issue of the marriage.
Prior to the marriage, appellant had received as a gift from her father the NE 1/4 of the NE 1/4 of Section 27 Township 61 North Range 5 West of the Boise Meridian, and the NW 1/4 of the SE 1/4 of the NE 1/4 of Section 27 Township 61 North Range 5 West of the Boise Meridian. A part of this land was sold for the sum of $2,400. The land and the $2,400 so received are admittedly the separate property of appellant. The money received from the sale was expended, after the marriage, in the construction of a dwelling on part of the land above described.
In the construction of the dwelling respondent contributed an uncertain and undetermined, also undeterminable, amount from his separate estate. Certain community funds of an undertermined amount were also used in the improvement.
In the decree the court found certain personal property belonging to the parties to be community property, and also found the real estate above described to be community property, divided it as such, and awarded a one-third interest to respondent and a two-thirds interest to appellant, and further decreed:
'That the counsel for plaintiff * * * be and he is hereby awarded the sum of One Hundred Fifty ($150.00) Dollars as attorney's fees, and the counsel for defendant * * * be and he is hereby awarded the sum of One Hundred Fifty-five ($155.00) Dollars as attorney's fees. * * * that the attorneys [naming them] shall have a lien upon the real estate belonging to the parties hereto for the unpaid portion of the attorneys' fees due them.'
The real estate referred to was that above described.
Of the community personal property owned by the parties the court awarded the household furniture and appellant's personal effects to her; and awarded a Chevrolet pickup and some personal property used in respondent's business as a packer and trapper to him.
Appellant appeals from all parts of the decree except the part which granted appellant a decree of divorce.
In specifications of error, appellant contends that the court erred in the division of the property and particularly the real estate; that the dwelling house and real estate could not be divided by the court as community property; that such real estate with all improvements was the separate property of the wife, not subject to community division; that the personal property was not equitably divided; that the court in determining the property rights of the parties, in effect, offset the value of the separate property of the wife against the community property awarded to the husband.
Under prescribed conditions enumerated in Secs. 32-704 and 32-706, I.C., the court may require the husband to pay alimony and money necessary to enable the wife to support herself or their children, or to prosecute or defend a divorce action. Resort may be had, under certain conditions, to the separate property of the husband. We know of no provision or authority, and none has been called to our attention, where the separate property of the wife, or real estate awarded to her in a divorce action, could be made subject to, and liable for, attorney fees contracted by the husband.
Law and custom require the husband, when able, to support the wife and the children the issue of the marriage, and ordinarily the wife is not required to pay his bills or support him. Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d 1159.
The measure and mode of compensation for attorneys is a matter for agreement between the attorney and client. While the trial judge could, in this case he did not, require the husband to pay the attorney fees of the wife. As this was not done, there was no occasion to fix any attorney fees. Section 3-205, I.C., providing a lien for attorneys upon a client's cause of action, which attaches to the judgment, is not here involved.
We therefore conclude that the part of the decree which fixed the amount of the attorney fees for each party and decreed that the attorneys should have a lien for the attorney fees so fixed on the wife's separate real estate, cannot be sustained and should be stricken from the decree in its entirety.
The husband had, or acquired, subsequent to the marriage, certain separate property which was partially expended in the construction of the dwelling and augmented the value of the wife's separate real estate. Other sums derived from the husband's separate estate were used for family support, doctor bills and other purposes. No finding was made by the court of the amount of separate funds of the husband that were expended in the construction of the dwelling on the wife's separate estate.
By reason of the community funds expended in the construction of the dwelling, and also some limited separate funds expended by respondent for a like purpose, it is the contention of respondent that he had an interest equivalent to one-third of the real estate of appellant. Respondent (husband) cannot claim an interest in, or a lien on, the wife's separate property for money expended in the support of the wife, himself or their child, even though the money was derived from separate estate. If he were allowed to claim an interest in her separate real estate because of such support, it would, in effect, require her to support, or partially support, herself, their child, and him out of her separate property.
When a divorce is granted on the ground of extreme cruelty, the community property of the parties may be assigned by the court granting the decree to the respective parties, as the court, from all the facts of the case and conditions of the parties deems just. Sec. 32-712, I.C. The court has the power under said section to divide the community property between the parties, but has no power or...
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...the parties, but has no power or authority to award the wife's separate property, or any part of it, to the husband.' Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999, 1002. (Emphasis supplied.) interest in the Arizona Hotel and it follows that the hotel was not community property thereafter. I......
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