Larson v. Larson

• Decision Date: 15 May 1973
• Docket Number: No. 11024,11024
• Citation: 95 Idaho 376,509 P.2d 1297
• Parties: Arnold C. LARSON, Plaintiff-Respondent, v. Valois Y. LARSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1297

509 P.2d 1297

95 Idaho 376

Arnold C. LARSON, Plaintiff-Respondent, v. Valois Y. LARSON, Defendant-Appellant.

No. 11024.

Supreme Court of Idaho.

May 15, 1973.

Randall & Bengtson, Lewiston, for defendant-appellant.

Robert S. Williams, Moscow, for plaintiff-respondent.

McFADDEN, Justice.

Arnold C. Larson, the plaintiff-respondent, instituted this action against Valois Y. Larson, the defendant-appellant seeking a divorce on the grounds of extreme cruelty. In the complaint he claimed certain items as community property and prayed for a division thereof. Valois Y. Larson, the wife, answered the complaint and alleged in an affirmative defense certain additional items of community property. By cross-complaint she sought a divorce on the grounds of extreme cruelty, custody of the parties' minor daughter, support for the daughter, division of the community property and attorney fees.

After trial, the court rendered its memorandum opinion and thereafter entered findings of fact, conclusions of law and decree. The trial court found each of the parties had been guilty of extreme cruelty to the other and by its decree dissolved the marriage. In its decree the trial court also awarded to appellant custody of the minor child and $35.00 per month as child support. The court awarded certain items of property to the husband, including a beer distributorship with real property, its equipment and inventory. The court awarded real and personal property to the wife, including certain real property in Spokane, Washington. The court also awarded the wife the sum of $22,800 to be paid by respondent husband at the rate of $100.00 per month, plus 6% interest, and it provided that if the beer distributorship be sold, appellant was entitled to the immediate payment of the balance then due. The trial court denied any allowance of attorney fees to the wife and by decree ordered each party to pay all moneys and obligations due against the property awarded them.

Following entry of the findings of fact, conclusions of law and decree, appellant filed her motion for new trial. This motion was subsequently denied by the court. Appellant has appealed from the judgment and decree of the trial court and from the order denying her motion for new trial.

One of appellant's contentions on this appeal is that the trial court erred in its determination that all the property of the parties was community property. She contends that she should have been awarded certain properties in Spokane, Washington, as her separate property.

After the parties were married, they lived in Washington for a number of years and moved to Moscow, Idaho in 1956. At that time they purchased a beer distributorship by contract for $32,500.00, and over the course of the years they paid it off. During the early years of their stay in Moscow, both of them worked in this business. The appellant did the book work, purchased supplies and generally helped her husband in the operation of the business. In about 1962, financial and other problems arose, and appellant left for Spokane where she subsequently obtained a position teaching school. One of appellant's stated reasons for this move was to alleviate serious financial problems that they were then facing.

After the appellant's move to Spokane, she later took her three children with her and supported them on her salary earned while teaching. Two of these children had reached the age of majority at the time the decree was entered, and the third child, a daughter, who was fourteen years of age, lived with her mother. While appellant lived in Spokane, respondent stayed in Moscow and ran the beer distributing business. The parties visited on weekends in Spokane and sometimes in Moscow. Also, over the years they took some vacations together. At times appellant stayed with respondent in Moscow. During this period of time appellant acquired interests in four parcels of real property in Spokane by paying small amounts down and then renting them. She did, however, maintain her home in one of these properties. One property, purchased for $14,700 had a balance owing on it of $13,000; another parcel purchased for $11,000, had a balance owing on it of $10,000; a third parcel, purchased for $7,000 had a balance owing on it of $6,500; and the fourth parcel purchased for $3,400, was clear.

Respondent in his complaint alleged that the parties accumulated as community property some twelve items of property, including not only the beer distributorship in Moscow, but also the equity in the four houses in Spokane, as well as certain motor vehicles, trailerhouse, insurance policies and household goods and furnishings. Appellant, in her answer, admitted that the four Spokane properties were community property.

Although appellant at one time in her testimony questioned whether the Spokane properties were community property there was never any issue presented to the trial court other than all property was community property. The trial court entered its memorandum decision, findings of fact, conclusions of law and judgment on this basis. i. e. that all property then before the court was the community property of the parties.

In her motion for new trial, appellant claimed as one of the grounds for the new trial that the trial court failed to consider that the Spokane property was acquired by her while living separate and apart from the plaintiff making it her sole and separate property. She raised this same contention on this appeal. In support of this position, appellant cites I.C. § 32- 909; ¹ Lorang v. Hays, 69 Idaho 440, 209 P.2d 733 (1949); Vaughn v. Vaughn, 91 Idaho 544, 428 P.2d 50 (1967), and Loring v. Stuart, 79 Cal. 200, 21 P. 651 (1889).

In Lorang v. Hays, supra, the issue before the court was whether the wife could maintain an action for false arrest without joining her husband. The court held under the facts he was not a necessary party. The court also found that at the time the damage action was filed the parties had been divorced, and that the former husband had participated in the acts which gave rise to the false imprisonment action. In our opinion, Lorang v. Hays, supra, does not sustain appellant's position.

In Vaughn v. Vaughn, supra, the issue before the court was whether the plaintiff could maintain an action against her former husband on a promissory note. In the Vaughn case the parties had not lived together from 1951 until the divorce in 1959. The Court stated:

'While the record may not show actual 'bad blood' between the parties, nevertheless the parties had reached a point in their marital life when each was going his or her own way without regard to the obligations of one for the other, and their separation had developed into a permanent one. It is clear that the parties established a status of separation within the purview of that section.' 91 Idaho at 548, 428 P.2d at 54.

In Loring v. Stuart, supra, the Supreme Court of California pointed out that the parties had been separated for some time, and during this period determined never to resume marital relations. That court held the parties were separated within the meaning of the California statute, which is a counterpart of I.C. § 32-909.

This case is factually distinguishable from the authorities cited by appellant. Here the parties on numerous occasions associated together during the time appellant lived in Spokane. It is our conclusion that there were such frequent associations between the parties that no separation had taken place within the meaning of the statute. In view of the facts and the allegations by appellant in her pleadings that the Spokane property was community property,...