Rosgen v. Rosgen

• Decision Date: 13 December 1948
• Docket Number: 7452
• Citation: 68 Idaho 521,200 P.2d 1005
• Parties: ROSGEN v. ROSGEN
• Court: Idaho Supreme Court

200 P.2d 1005

68 Idaho 521

ROSGEN v. ROSGEN

No. 7452

Supreme Court of Idaho

December 13, 1948

Appeal from District Court, Second Judicial District, Latah County O. C. Wilson, Judge.

Affirmed except as to trust deed, and reversed as to the trust deed.

Robert W. Peterson, of Moscow, for appellant.

It has been held that when a divorce action has been finally closed any property rights between the parties growing out of the marital relation, are no longer open to adjudication in the absence of showing that the court granting the divorce was without power to litigate such rights, or in the absence of mistake or concealment, and that a divorce decree purporting to settle all the property rights of the parties is conclusive to all such rights as could have been disposed of by the decree. Feland v. High, 180 Okl. 93, 67 P.2d 967; 27 C.J.S., Divorce, § 300, page 1150.

J. H Felton and William J. Jones, both of Lewiston, for respondent.

Divorce court can construe its decrees in regard to property settlements at any time.

A divorce court retains jurisdiction to do anything necessary to construe or enforce its judgment in all matters, including property settlements. Murphy v. Murphy, 64 Nev. 440, 183 P.2d 632, at page 636; Pilson v. Salvoni, 65 App.D.C. 55, 79 F.2d 411; Mann v. Mann, 135 Okl. 211, 275 P. 348; Troyer v. Troyer, 177 Wash. 88, 30 P.2d 963; Long v. Stratton, 50 Ariz. 427, 72 P.2d 939.

Givens, Chief Justice. Holden, J., and Featherstone, Taylor, and Sutphen, District Judges, concur.

OPINION

Givens, Chief Justice.

Respondent secured a divorce from appellant April 25, 1945, the decree therein approving: a property settlement between the parties, thereby directing payment of $ 500 from appellant to respondent, and $ 50 a month thereafter for her support and maintenance until remarriage, and $ 100 per month for the support and maintenance of two minor children, whose custody was given to respondent, and a quit claim deed by appellant conveying to respondent as her sole and separate estate, Lot 9 in Block 1 of Sunnyside Addition to the Town of Moscow, Latah County, Idaho, their home place.

Thereafter, on October 28, 1947, by affidavit and motion, respondent (since remarried) sought a show-cause order, to require appellant to pay the $ 500 above mentioned, asserting it had not been paid; to restrain him from annoying and harassing her and from entering the above premises; to pay $ 300 per month instead of $ 150; and to set aside a deed by her to him on the home place giving him as trustee a one-third interest therein for each child, on the ground the deed was obtained by fraud, coercion, threats and misrepresentation.

The decree February 2, 1948, ordered: payment of $ 500, increase in the monthly allowance to $ 200 per month, that appellant desist from annoying and harassing respondent, and that the deed be set aside. The present appeal is from this latter decree.

While appellant, at the hearing nisi prius and on appeal, urged that some payments had been made on the $ 500, no showing was made as to amounts, etc., nor was further time asked for an opportunity to present the same. The $ 500 not having been paid as ordered in the previous decree, justified the order for its payment instanter. The showing was sufficient to justify the increase of the monthly allowance for respondent and the two children from $ 150 to $ 200; likewise, the order that appellant desist from annoying and harassing respondent.

The quit claim deed given by appellant to respondent and as approved in the first decree, constituted this property her sole and separate estate -- the agreement expressly providing that: "Third: That each of said parties shall have an immediate right to dispose of or bequeath by will his or her respective interests in and to any and all property belonging to him or her from and after the date hereof, and that said right shall extend to all of the aforesaid future acquisitions of property as well as to all property, set over to either of the parties hereto under this agreement."

And the Findings and Conclusions this:

"II. That the Property Settlement and Agreement of Custody and Support entered into by the parties hereto should be ratified and approved, except as to Paragraph 12 thereof." (Paragraph 12 had to do with attorney's fees, costs, etc.)

"VI. That pursuant to the terms of said Property Settlement Agreement referred to herein, the Defendant has conveyed, by good and sufficient quit claim deed, all his...