Murphey v. Murphey, 13374

• Decision Date: 21 October 1982
• Docket Number: No. 13374,13374
• Citation: 103 Idaho 720,653 P.2d 441
• Parties: Robert William MURPHEY, Plaintiff-Appellant, v. Myrna Grace MURPHEY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 441

653 P.2d 441

103 Idaho 720

Robert William MURPHEY, Plaintiff-Appellant, v. Myrna Grace MURPHEY, Defendant-Respondent.

No. 13374.

Supreme Court of Idaho.

Oct. 21, 1982.

Leon R. Weeks (deceased), Nampa, for plaintiff-appellant.

Richard B. Eismann, Homedale, for defendant-respondent.

BISTLINE, Justice.

This is an appeal from an award of alimony and attorney's fees in a divorce proceeding. The plaintiff-appellant Robert Murphey challenges on appeal, as he did below, the constitutionality of the statute under which alimony was awarded, former I.C. § 32-706, since repealed, to wives only. He also challenges the award of attorney's fees to his wife under the provisions of former I.C. § 32-704, since repealed, which provided for awards of attorney's fees in divorce proceedings to wives only.

I.

The appellant's contention that the classification established by former § 32-706 discriminates on the basis of sex in violation of the equal protection clauses of the United States Constitution, U.S. Const. amend. XIV § 1, ¹ and the Idaho Constitution, Id. Const. art. I § 2, ² is correct. I.C. § 32-706 provided at the time in question ³ that:

"Alimony for fault of husband.--Where a divorce is granted for an offense of the husband, including a divorce granted upon the husband's complaint, based upon separation without cohabitation for five (5) years, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects."

In 1979 the U.S. Supreme Court decided Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). The Alabama statutes challenged in Orr, like our former alimony statute, allowed awards of alimony to the wife only. Id. at 270 n. 1, 99 S.Ct. at 1107 n. 1. The Orr court applied the substantial relationship standard of review ⁴ to the Alabama statute. The Court described this standard and why it was to be applied in the following matter:

"In authorizing the imposition of alimony obligations on husbands, but not on wives, the Alabama statutory scheme 'provides that different treatment be accorded ... on the basis of ... sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause,' Reed v. Reed, 404 U.S. 71, 75 [92 S.Ct. 251, 253, 30 L.Ed.2d 225] (1971). The fact that the classification expressly discriminates against men rather than women does not protect it from scrutiny. Craig v. Boren, 429 U.S. 190 [97 S.Ct. 451, 50 L.Ed.2d 397] (1976). 'To withstand scrutiny' under the Equal Protection Clause, ' "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." ' Califano v. Webster, 430 U.S. 313, 316-317 [97 S.Ct. 1192, 1194-1195, 51 L.Ed.2d 360] (1977)." 440 U.S. at 278-79, 99 S.Ct. at 1111.

After examining the objectives of the Alabama alimony statute, the Court concluded that providing alimony for needy wives, but not needy husbands, was not substantially related to achievement of any of those objectives. While alimony itself serves useful purposes, the Orr Court did not believe that the gender-based classification was at all necessary to effectuate those purposes. It thus reversed the Alabama Supreme Court's affirmance of the alimony award and remanded, stating that "[this] disposition, of course, leaves the state courts free to decide any questions of substantive state law not yet passed upon in this litigation." 440 U.S. at 283, 99 S.Ct. at 1114.

Orr is dispositive of the issue of whether former I.C. § 32-706 violates the equal protection clause of the United States Constitution. While alimony serves a number of laudable purposes, as we discuss in part II, infra, there is no discernible relationship between those purposes and the creation of a gender-based classification for determining who receives the benefits of alimony. The goals of the alimony statute would be fulfilled as much by a statute which extends benefits to both needy wives and needy husbands as by a statute which extends benefits to needy wives only. As the Court in Orr put it:

"Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the 'proper place' of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 173-174 [97 S.Ct. 996, 1013-1014, 51 L.Ed.2d 229] (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound--if only indirectly--to the benefit of those without need for special solicitude." 440 U.S. at 283, 99 S.Ct. at 1113-14.

Classifications which perpetuate or encourage sexual stereotypes necessarily burden those persons--of either gender--whose social and economic preferences or conditions do not conform to the stereotypical model. To allow the state to create such classifications, at least in the absence of a substantial relationship between the classifications and an otherwise valid state goal, would be abhorrent to art. I, § 2 of the Idaho Constitution. We therefore hold that former I.C. § 32-706 violates the equal protection clauses of both the Idaho Constitution and the United States Constitution.

II.

Having arrived at the relatively easy conclusion that a statute which allows awards of alimony only to women is not constitutional, we turn to the more difficult task of deciding whether that decision should be applied retroactively, i.e., to declare the statute to have been at all times void and of no effect, or to extend its construction so as to make the statute constitutional. As we noted in Harrigfeld v. District Court, 95 Idaho 540, 545, 511 P.2d 822, 827 (1973), "[a] holding that a statutory classification scheme constitutes a denial of equal protection because it unconstitutionally grants a benefit to one class while denying it to another, does not necessarily mandate a denial of the benefit to both classes." In deciding whether to construe the statute as neutrally extending the benefits of alimony, we should interpolate that which we believe that the legislature would have intended had it realized that the alimony statute as drafted might somehow transgress constitutional boundaries.

By the plain language of I.C. § 32-706, the purpose of alimony is to provide "support" for the wife. While it is true that under this statute alimony could only be granted when the husband, rather than the wife, was the offending party, this was not intended as a punishment for every offending husband. The purpose of this statute was to provide for the needs of the wife if the divorce was not occasioned through her fault. As this Court stated in Jackson v. Jackson, 87 Idaho 330, 334, 393 P.2d 28, 30 (1964), "Alimony ... is designed solely for the support of the wife." Cf. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964) (error to limit alimony to one year when wife's need for alimony might extend beyond one year); Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972) (in awarding alimony, due consideration should be given to the correlative needs and abilities of both parties). " 'Alimony,' which signifies literally nourishment or sustenance, is an allowance for support and maintenance, or, as has been said, a substitute for marital support." 24 Am.Jur.2d, Divorce and Separation § 514 at 640-41 (1966) (footnotes omitted). See generally Olsen v. Olsen, 98 Idaho 10, 14-22, 557 P.2d 604, 608-616 (Shepard, J., dissenting).

It is apparent that the legislature would have intended that the benefits of the alimony statute should be extended to the excluded class, rather than taken from the benefitted class, and we should therefore extend those benefits in order that the legislative will, albeit not gifted with omniscience, should be carried out.

"If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, the analytically sound approach is to accept responsibility for [the] decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with Congress' wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional." Welsh v. United States, 398 U.S. 333, 355-56, 90 S.Ct. 1792, 1804, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring).

The Supreme Court in Orr implicitly recognized that alimony statutes are to be considered as providing a benefit to the receiver of the alimony when it stated that "It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay. It is therefore possible that his success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives." 440 U.S. at 271-72, 99 S.Ct. at 1107-08 (emphasis added) (footnote omitted).

On remand from the Supreme Court, the Alabama Court of Appeals in fact responded to reversal by neutrally extending alimony rights to needy husbands as well as wives. Orr...