McNett v. McNett

Decision Date10 October 1972
Docket NumberNo. 10873,10873
PartiesJamie L. McNETT, Plaintiff-Respondent, v. Ethel M. McNETT, Defendant-Appellant.
CourtIdaho Supreme Court

Denman & Reeves, Idaho Falls, for appellant.

Holden, Holden, Kidwell, Hohn & Carpo, Idaho Falls, for respondent.

DONALDSON, Justice.

This is an appeal from a judgment entered in a divorce action brought by respondent Jamie L. McNett against appellant Ethel M. McNett, and from an order denying the appellant's request for attorney's fees on appeal. The trial court awarded a divorce to both parties; made a disposition of community property; granted custody of their minor daughter to the appellant-wife; ordered the respondent-husband to pay child support in the amount of $125 monthly, in addition to life insurance premiums and medical, dental, and optical expenses; awarded appellant-wife $75 a month temporary alimony (for a period not to exceed one year) while she was completing a secretarial course; ordered the respondent-husband to pay for the appellant-wife's costs on appeal, within a reasonable time after notice of the amounts thereof had been received; and deferred to this Court the appellant-wife's request for attorney's fees on appeal. The appellant objects to all of the actions taken by the trial court, except for the decision granting her custody of the minor child.

In his brief, the respondent contends that this appeal should be dismissed because the appellant (1) failed to file the praecipe or the order for the reporter's transcript within five days of the filing of the notice of appeal, and also (2) failed to serve her brief within thirty days after the filing of the record on appeal. Dismissal for noncompliance with the rules of appellate procedure is discretionary with this Court and in the absence of prejudice will not be granted. Bistline v. Eberle, 88 Idaho 473, 401 P.2d 555 (1965). The respondent has not only failed to make a motion to dismiss the appeal, as required by Supreme Court Rule 33, but he has also failed to show that he was hampered in preparing his brief or in presenting his case by the appellant's failure to perfect her appeal on time; hence, respondent's request to dismiss the appeal is denied.

The appellant contends that the district court erred in granting a divorce to both parties, since only she had proved grounds for divorce. A divorce may be awarded to both parties to a marriage where both have been guilty of extreme cruelty. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972); Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (1967). Having reviewed the record in this case, we conclude that there is substantial and competent evidence to support the challenged finding and, therefore, it will not be disturbed on appeal. Shepard v. Shepard, supra; Brammer v. Brammer, 93 Idaho 671, 471 P.2d 58 (1970). Similarly, the court's award to respondent Mr. McNett of the two rifles claimed by the appeallant is supported by substantial, competent evidence and, thus, will also be affirmed.

In regard to the trial court's provision for temporary alimony, the appellant challenges both the amount awarded and the limited duration thereof. She claims that the trial court erred in failing to award her more than $75 monthly as alimony, and in limiting alimony to the period during which she was a student enrolled in a particular course of study. It is the settled rule in Idaho that alimony is not awarded to the wife as a matter of right but only at the discretion of the trial court. Shepard v. Shepard, supra; Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968); Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967); Losee v. Losee, 91 Idaho 77, 415 P.2d 720 (1966). In ascertaining whether permanent alimony should be awarded, and if so, the amount thereof, the correlative needs and abilities of both parties must be considered. Applying this standard to the case at bar, we find that the refusal to award the appellant permanent alimony was not an abuse of discretion; similarly, the amount awarded as temporary alimony was within the discretion vested in the trial court.

The appellant further contends that the trial court erred in awarding inadequate child support, in dividing the community property inequitably, and in requiring the appellant to satisfy the encumbrance on the 'family residence.' These three issues will be considered together, since each is a matter within the sound discretion of the trial court. This Court has repeatedly held that the allowance of child support, the division of community property, and the providion for payment of community debts are all subject to the sound discretion of the trial court; and in the absence of a clear showing of an abuse of such discretion, the trial court's determination of these matters will not be disturbed on appeal. Brammer v. Brammer, supra, 93 Idaho at 675-676, 471 P.2d 58; see, e. g., Meredith v. Meredith, supra; Loveland v. Loveland, supra; Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966). The record herein indicates that the trial court acted within its legal discretion in regard to the amount of child support awarded, the allocation of community debts, and the amount of community property awarded to each party. However, the appellant also complains because the trial court 'left the parties 'married' to each other' by making them tenants in common in each of their two homes. We agree with the appellant that the trial court abused its discretion by dividing these items of community property in this form. Although the best interests of the parties may sometimes require otherwise, ordinarily the trial court should divide the community property in a manner which gives each spouse the sole and immediate control of his or her determined share. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964); Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964); Largilliere v. Largilliere, 50 Idaho 496, 298 P. 362 (1931). In general, tencancy in common ownership is inconsistent with the severance of an interpersonal relationship, which it is the object of a divorce decree to achieve. Although this Court has the statutory power to revise all particulars of the community property disposition made by the lower court (I.C. § 32-714), we think that in this case it would be more appropriate to remand the case so that the district court may hear any further evidence the parties may desire to submit on the issue of how these homes should be divided between the poarties. In this regard, we emphasize that we do not agree with the appellant's further contention that both residences should be awarded to her exclusively. Reallocation of responsibility should be divided between the parties. In on these parcels may or may not be appropriate, depending upon the ultimate disposition made by the district court.

The appellant's next contention is that the trial court erred in deferring to this Court a decision on the question of whether the respondent-husband should be required to pay for the appellant-wife's attorney's fees on appeal....

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