Radermacher v. Radermacher

• Decision Date: 21 March 1940
• Docket Number: 6737
• Citation: 61 Idaho 261,100 P.2d 955
• Parties: HENRY J. RADERMACHER, Appellant, v. FREDA M. RADERMACHER, Respondent
• Court: Idaho Supreme Court

100 P.2d 955

61 Idaho 261

HENRY J. RADERMACHER, Appellant, v. FREDA M. RADERMACHER, Respondent

No. 6737

Supreme Court of Idaho

March 21, 1940

HUSBAND AND WIFE-DIVORCE-SEPARATE MAINTENANCE-CUSTODY OF CHILDREN-PROPERTY-SEPARATE-COMMUNITY-HUSBAND'S CONTROL-WIFE'S INTEREST-SEPARATE MAINTENANCE OF WIFE.

1. A decree that wife may live separate and apart from husband and requiring husband to contribute toward support of wife and dependent children, does not violate statute providing that husband is head of family and may choose any reasonable place or mode of living, and that wife must conform thereto. (I. C. A., sec. 31-902.)

2. The statute providing that husband is head of family and may choose any reasonable place or mode of living, and that wife must conform thereto, governs the domicile of the family if husband does not so far misbehave himself as to justify wife in living separate and apart. (I. C. A., sec. 31-902.)

3. Equity courts have inherent jurisdiction to award separate maintenance for support of wife and minor children independently of any action for divorce and independently of any statutory provision. (I. C. A., sec 31-901.)

4. A husband cannot by his misconduct, including refusal to support family, force wife to procure divorce, and the law does not criticize nor penalize those who do not see fit to avail themselves of the remedy of divorce.

5. The word "separate" used in connection with "maintenance" in describing the remedy of "separate maintenance" indicates that it is wife's right to be maintained by her husband while living apart from him. (I. C. A., sec. 31-901.)

6. The remedy of "separate maintenance," while not identical with "divorce a mensa et thoro," which was a decree forbidding the parties to a marriage to live and cohabit together but not dissolving bonds of matrimony, is similar to it in some respects and may be used in place of it. (I. C. A., sec. 31-901.)

7. Where decree of separate maintenance has been granted spouses are not forbidden to live and cohabit together, and they may lawfully resume the marital relation by mutual consent, without first having the decree vacated. (I. C. A sec. 31-901.)

8. A decree of separate maintenance does not dissolve the bonds of matrimony but continues in force the husband's duty to support his family, while denying some of the privileges of matrimony, and hence until spouses agree to resume the marital relation, husband must contribute to support and cannot maintain suit for divorce on ground of wilful desertion. (I. C. A., sec. 31-901.)

9. Evidence held to authorize awarding custody of minor children to wife in granting to wife a decree of separate maintenance. (I. C. A., sec. 31-1005.)

10. A wife's interest in community property is a present, vested interest, equal to that of the husband in all particulars other than the right to management and control, and is not a mere "expectancy." (I. C. A., secs. 31-907, 31-913.)

11. Though statute governing community property constitutes the husband the agent of partnership composed of husband and wife, and imposes on him the duty and responsibility of managing and controlling community property, it does not place community property beyond the reach of a court of equity so that it cannot be used in providing wife a protected allowance for support of herself and of dependent children when husband has so conducted himself as to necessitate decree of separate maintenance and support. (I. C. A., sec. 31-913.)

12. A wife's interest in husband's separate property is a mere "expectancy" subject to being defeated by his will, and hence court decreeing separate maintenance has no power to award hus- band's separate property to wife, either permanently or temporarily. (I. C. A., secs. 14-103, 14-301, 31-901.)

13. Though husband's separate property cannot be directly awarded to wife by decree for separate maintenance, it is not entirely beyond the reach of equity court, and court may give husband the alternative of permitting wife and children to remain in house on home place or provide them with suitable home elsewhere within reach of wife's employment. (I. C. A., secs. 14-103, 14-301, 31-901.)

14. If husband continues to provide his family with home in which they previously lived, he should be given credit for rental value thereof on what he would otherwise be required by decree for separate maintenance to pay in cash.

15. Equity acts in personam.

16. Where supreme court's order reversing decree awarding wife separate maintenance and property, and remanding the case, directed trial court to require, solely, a proper, adequate, and protected monthly allowance for wife and minor children, that portion of amended decree which confirmed and ratified wife's expenditures from proceeds of sales of community property was improper as in excess of the order remanding the case.

17. In determining amount which husband should pay toward separate maintenance and support of his family, court should consider earning capacity of the wife as well as that of the husband. (I. C. A., sec. 31-901.)

18. Where remand of case to trial court would make it necessary for trial judge to reconsider determination of amounts to be paid by husband toward maintenance of family, reviewing court referred to trial judge the question of requiring husband to pay wife's attorney for services rendered in the appeal.

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

I. The husband is the head of the family, and may choose any reasonable place or mode of living and the wife must conform thereto. However, when he adopts, and persists in, a course of conduct which renders it impossible for his wife to live with him in safety and decency she is entitled to a decree that she may live separate and apart from him, and requiring him to contribute toward her support and that of their dependent children.

II. Courts of equity have jurisdiction to award separate maintenance for the support of the wife and minor children, independent of suit for divorce and of statutory provisions.

III. A divorce a mensa et thoro was a decree forbidding the parties to a marriage to live and cohabit together, but did not dissolve the bonds of matrimony.

IV. A husband and wife, parties to a decree of separate maintenance, are not forbidden to live and cohabit together, and may lawfully resume the marital relation without first having the decree vacated.

V. Upon application of a husband or wife, an inhabitant of Idaho, living in a state of separation without being divorced, a district court may inquire into the custody of any unmarried child of the marriage and award its custody to either parent, being guided by the welfare of the child.

VI. All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, or with the proceeds of her separate property; also her earnings and accumulations, and those of her minor children living with her or in her custody, while she is living separate from her husband, are her separate property.

VII. All property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property.

VIII. All other property acquired after marriage by either husband or wife, including the rents and profits of their separate property, is community property.

IX. The husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate.

X. The wife's interest in the community property is a present, vested interest, equal to that of the husband, and not a mere expectancy.

XI. While the husband has the management and control of the community property, it does not follow it is beyond the reach of a court of equity so that it cannot be used in providing the wife a protected allowance for her support and that of their dependent children, pursuant to a decree of separate maintenance.

XII. The wife has no vested interest in the separate property of the husband. At most her interest therein is but an expectancy subject to being defeated by his will. The court is without power to award the separate property of the husband to the wife, either permanently or temporarily.

XIII. Equity acts in personam.

XIV. In deciding the amount the husband should pay toward the separate maintenance and support of his family, the earning capacity of the wife, as well as that of the husband, should be taken into consideration.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. D. H. Sutphen, Judge.

Suit by husband for divorce. Cross-complaint by wife for separate maintenance. Decree for cross-complainant. Modified.

Case remanded with direction. No costs awarded.

Bissell & Bird and W. L. Dunn, for Appellant.

In a suit for alimony without divorce, the award must be based on the husband's income.

"In a suit for separate maintenance the Court deals only with the husband's income." (Jones v. Jones, 228 Ala. 178, 153 So. 203.)

"In a suit for alimony without divorce, Court can deal only with husband's income." (Waldrop v. Waldrop, 222 Ala. 625, 134 So. 1.)

"In fixing alimony Court may regard earnings of the husband and may subsequently increase the amount." (Humbird v. Humbird, 42 Idaho 29, 243 P. 827.)

An allowance for separate maintenance is in the nature of temporary alimony.

"The amount of temporary alimony is a matter within the sound discretion of the Court, under all the circumstances of the case, such as, the ability of the man to work and earn money, the financial condition of the parties, their station in life, etc." (17 Am. Jur. 535.)

"It is the duty of ...