Malone v. Malone

• Decision Date: 27 October 1942
• Docket Number: 6861
• Citation: 130 P.2d 674,64 Idaho 252
• Parties: E. J. MALONE, Respondent, v. BULA MALONE, Appellant
• Court: Idaho Supreme Court

130 P.2d 674

64 Idaho 252

E. J. MALONE, Respondent, v. BULA MALONE, Appellant

No. 6861

Supreme Court of Idaho

October 27, 1942

HUSBAND AND WIFE-DIVORCE-COMMUNITY PROPERTY-DIVISION OF ALIMONY-APPEAL AND ERROR.

1. Divorce decree for wife on ground of extreme cruelty could not be complained of on wife's appeal because decree awarded to her $1,000 in cash instead of an interest in realty which was allegedly community realty, where the realty was subject to indebtedness far in excess of its value. (I.C.A., secs. 31-712, subd. 1, 31-713, 31-714.)

2. On granting of divorce to wife on ground of extreme cruelty community estate was entitled to be credited and husband's separate estate charged with expenditures made from community funds in improvement of his separate property but not with expenditures voluntarily made without cost to the community by his children, who were tenants on the property. (I.C.A., secs. 31-906, 31-907, 31-712, subd. 1, 31-713, 31-714.)

3. "Rents" and "profits", as used in statute providing that all other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife is community property, means net rents and profits and not gross income. (I.C.A., sec. 31-907.)

4. The allowance of ailmony and the amount thereof, are, in the first instance committed to trial court's discretion and will not be interferred with on appeal in absence of a manifest abuse of discretion.

5. An award of alimony to wife in amount of $110 a month until husband paid wife one-half of net value of community property, together with $700 attorney's fees, or until community property was sold and money arising therefrom disbursed as conditionally provided for in decree, and in amount of $50 per month after division of community property and payment of attorney's fees, was not disturbed, where husband was owner of valuable encumbered property. (I.C.A secs. 31-712, subd. 1, 31-714.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. In a decree of divorce, in favor of the wife, on the ground of extreme cruelty, an award to her of $1000 in cash, instead of an interest in community real estate, subject to indebtedness far in excess of its value, constitutes no ground for reversal on her appeal.

II. On dissolution of the marriage, by divorce, the community estate was entitled to be credited, and the estate of the husband charged, with expenditures made from community funds in improvement of his separate property, but not with expenditures voluntarily made without cost to the community by his children, who were tenants on the property.

III. The statutory provision making all property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife community property, means net rents and profits, and is not to be construed to mean that gross income from separate property shall belong to the community.

IV. Allowance of alimony, and the amount thereof, are, in the first instance, committed to the discretion of the trial court and will not be interferred with on appeal in the absence of a manifest abuse of discretion.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. In a decree of divorce, in favor of the wife, on the ground of extreme cruelty, an award to her of $ 1000 in cash, instead of an interest in community real estate, subject to indebtedness far in excess of its value, constitutes no ground for reversal on her appeal.

II. On dissolution of the marriage, by divorce, the community estate was entitled to be credited, and the estate of the husband charged, with expenditures made from community funds in improvement of his separate property, but not with expenditures voluntarily made without cost to the community, by his children, who were tenants on the property.

III. The statutory provision making all property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife, community property, means net rents and profits, and is not to be construed to mean that gross income from separate property shall belong to the community.

IV. Allowance of alimony, and the amount thereof, are, in the first instance, committed to the discretion of the trial court and will not be interfered with on appeal in the absence of a manifest abuse of discretion.

Appeal from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. James W. Porter, Judge.

Action for divorce. Decree granting defendant divorce on her cross-complaint, adjudicating the property rights of the parties and awarding alimony. Affirmed.

Affirmed.

W. L. Dunn for appellant.

Upon the dissolution of the marriage appellant became entitled to reimbursement of all increased values on respondent's separate real estate, where that increased value resulted from improvements made during the marriage, as well as reimbursement for her common share of all money paid out from community funds for taxes levied against the separate estate of respondent. (Printz v. Brown, 31 Idaho 443, 174 P. 1012; McKay on Community Property, Secs. 254, 259, 351.)

Appellant is entitled to a monthly allowance sufficient for her maintenance and support in the manner she has been accustomed to live and according to her necessities, limited only by respondent's ability reasonably to pay the same, and the monthly allowance awarded by the court was inadequate for the reasonable necessities and support of appellant and therfeor an abuse of the court's discretion. (Sec. 31-706, I. C. A.; Enders v. Enders, 36 Idaho 431, 211 P. 549.)

James R. Bothwell for respondent.

Rents and profits of the separate property of husband and wife are community property, but not money expended to earn the rents and profits nor to prevent the impairment of the separate property. (Sec. 31-907, I. C. A.; Humbird Lbr. Co. v. Doran, 24 Idaho 507, 135 P. 66; 54 Corpus Juris, pages 384-5; Hopkins v. Remy, 64 N.J. Eq. 12, 15; 53 A. 676.)

That the wife may have joined in mortgages to refinance an indebtedness secured by the separate property of the husband does not convert the separate obligation of the husband to that of a community debt or change the character of the property from separate property to community property. ( Stewart v. Weiser Lbr. Co., 21 Idaho 340, 121 P. 775; Douglas v. Douglas, 22 Idaho 336, 125 P. 796; 31 Corpus Juris, page 37, sec. 1129.)

An allowance to the wife for her support should be based upon conditions as they exist when the divorce is granted, not upon some uncertain situation which may or may not arise in the future. (Sec. 31-706, I. C. A.; Smiley v. Smiley, 46 Idaho 588, 269 P. 589; Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345.)

MORGAN, J. Givens, C. J., and Budge, Holden and Ailshie, JJ., concur.

OPINION

MORGAN, J.

January 19, 1927, respondent, a widower and the father of six married children, united in marriage with appellant, a widow with a family consisting of three sons in their teens. Prior to and at the time of the marriage, respondent was the owner of 419 acres of land in Twin Falls County and two city lots in Twin Falls. Appellant was, and had been prior to the marriage, the owner of a house and lot in Twin Falls.

June 26, 1939, respondent filed a complaint against appellant in the District Court, in and for Twin Falls County, wherein he sought a divorce from her on the ground of extreme cruelty. Appellant answered the complaint and, by way of cross-complaint, charged respondent with extreme cruelty. Both parties sought an adjudication of their property rights.

The trial of the case resulted in findings of fact wherein the court found respondent had been guilty of conduct which resulted in grievous mental anguish and grievous mental suffering by appellant. Conclusions of law were made and a decree was entered awarding appellant a divorce. In the decree the real estate owned by respondent, prior to his marriage to appellant, was adjudged to be his sole and separate property and the real estate owned by appellant, prior to the marriage, was adjudged to be her sole and separate property.

In February, 1928, after the marriage, respondent purchased 80 acres of land in Twin Falls County, for a consideration of $ 16,500. He paid $ 500 of the purchase price with money which was his separate property, and $ 8000 with borrowed money to secure the repayment of which he mortgaged a portion of his separate real estate. Payment of the remaining $ 8000 was secured by mortgaging the 80 acres of purchased land. $ 2000 of the mortgage indebtedness, last mentioned, has been paid with community funds. The 80 acres, so purchased and mortgaged, was decreed to be the sole and separate property of respondent.

The trial court found there was due to the community estate, from the separate estate of respondent, $ 2000, the amount paid with community funds on the mortgage indebtedness against the land purchased after the marriage. It also found the value of the community personal property, item by item, and the amount of community indebtedness. Among the assets of the community was $ 400 in money in a bank and certain shares of mining stock of uncertain value.

In the conclusions of law it is recited:

"That by reason of the nature of the said community estate and funds it is impracticable for the court to divide the said community estate and funds of the plaintiff and defendant in kind, except the said 984 shares and a contingent interest in 30,000 shares of the capital stock of the Gold Bottom Mining Company of the community estate of plaintiff and defendant."

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