Ross v. Ross

• Decision Date: 28 April 1982
• Docket Number: 13260 and 13265,Nos. 12980,s. 12980
• Citation: Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (Idaho 1982)
• Parties: Lucy Hay ROSS, Plaintiff-Respondent and Cross-Appellant, v. John D. ROSS, Defendant-Appellant and Cross-Respondent. Lucy Hay ROSS, Plaintiff-Appellant, v. John D. ROSS, Defendant-Respondent. Lucy Hay ROSS, Plaintiff-Respondent, v. John D. ROSS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1119

648 P.2d 1119

103 Idaho 406

Lucy Hay ROSS, Plaintiff-Respondent and Cross-Appellant, v.John D. ROSS, Defendant-Appellant and Cross-Respondent.

Lucy Hay ROSS, Plaintiff-Appellant, v.John D. ROSS, Defendant-Respondent.

Lucy Hay ROSS, Plaintiff-Respondent, v.John D. ROSS, Defendant-Appellant.

Nos. 12980, 13260 and 13265.

Supreme Court of Idaho.

April 28, 1982.

Dean E. Miller of Gigray, Miller, Downen & Weston, Caldwell, for John D. ross.

Fred Kennedy of Kennedy, Thomas, Sasser & Hamlin, Boise, for Lucy Hay Ross.

DONALDSON, Justice.

These are appeals and cross-appeals from various rulings of the trial court in a divorce proceeding.We affirm in part, reverse in part, and remand for further proceedings.

Lucy Hay Ross(hereinafter plaintiff) and John D. Ross(hereinafter defendant) were married in 1953 and had three children, one of whom was fifteen years old at the time of the divorce and was in the custody of the plaintiff.

Defendant is a physician with a specialty in ophthaemology and had so practiced for approximately ten years at the date of the divorce.In 1975, defendant earned approximately $100,000 from his medical practice.The parties had accumulated community property valued at approximately $617,000.

Plaintiff filed for divorce in March, 1976, on the grounds of adultery and extreme cruelty.Defendant admitted the allegation of extreme cruelty but denied the allegation of adultery and filed a counterclaim for divorce on the grounds of irreconcilable differences.

Defendant then moved for partial summary judgment on the divorce issue only.At the hearing plaintiff did not resist the granting of divorce, but rather argued that a partial summary judgment for divorce should be granted to her, rather than the husband, on her grounds of adultery or extreme cruelty.The court entered what was denominated "Order for Partial Summary Judgment and Judgment of Divorce."The court ordered that the marriage be dissolved, but that additional questions concerning alimony, the division of property, and the custody and support of the minor child, be reserved for trial.The court first granted the divorce on grounds of irreconcilable differences, but on plaintiff's motion and after further argument changed the grounds to extreme cruelty.

Plaintiff later moved to vacate the partial summary judgment and also moved for a new trial on the basis of mistake, inadvertence, surprise, or excusable neglect in failing to file affidavits or authorities in opposition to the motion for summary judgment.On October 15, 1976, defendant, by way of opposition to plaintiff's motion to vacate the summary judgment, filed an affidavit stating that he had remarried.On that same date a hearing was held and the motions were denied.Trial began upon the remaining issues on March 14, 1977, following which the trial court entered its findings of fact, conclusions of law, and decree.The court found inter alia that defendant had inflicted extreme cruelty on plaintiff; that the evidence was not sufficiently clear and convincing to constitute proof of adultery by defendant; that the net community property value was $617,120, and that an equal division of the property was fair, reasonable and just, and would result in the least adverse tax consequences to the parties; that defendant must pay $30,000 per year to plaintiff as alimony for her lifetime (that alimony provision was later modified to require alimony at $30,000 per year for five years, $24,000 for the sixth year, $18,000 for the seventh year, $12,000 for the eighth year, $6,000 for the ninth year, and thereafter alimony to cease); that defendant must pay plaintiff the sum of $150 per month for child support; that defendant must sell the parties' residence and their interest in a farm partnership and pay to plaintiff the sum of approximately $151,000 "directly from the proceeds of said sales;" that defendant must pay all tax liability resulting from income from the community property, together with all tax liability upon the personal income of the defendant"through the date of plaintiff's divorce from the defendant" and all taxes that might arise from the sale of the residence and the farm partnership; that defendant must pay his own attorney fees, with plaintiff to pay the first $12,500 of her attorney fees, and defendant to pay the remainder thereof of approximately $6,000.Finally, plaintiff was granted a divorce upon the ground of extreme cruelty "nunc pro tunc and of record as of September 20, 1976."Since we affirm the summary judgment this issue is moot.¹

Plaintiff first asserts that the trial court erred in entering a partial summary judgment and decree of divorce, reserving additional issues for later trial.In Newell v. Newell, 77 Idaho 355, 362, 293 P.2d 663, 667(1956), cert. denied, 352 U.S. 871, 77 S.Ct. 95, 1 L.Ed.2d 76(1956), we held that "(t)he divorce laws of Idaho make no provision for an interlocutory judgment of divorce, ..."However, subsequent to Newell, Idaho adopted the Federal Rules of Civil Procedure.I.R.C.P. 56(a) now permits judgment "upon all or any part" of a claim.(Emphasis added.)Even though the trial court did not certify the partial summary judgment as final as required in I.R.C.P. 54(b), for the reasons stated below, we nonetheless hold that following the principles of quasi estoppel plaintiff is estopped from alleging that error occurred in the trial court's granting of the decree of divorce.

Concerning quasi estoppel this Court has stated,

"To constitute quasi estoppel, the person against whom the estoppel is sought must have gained some advantage for himself, produced some disadvantage to the person seeking the estoppel, or induced such party to change his position; in addition it must be unconscionable to allow the person against whom the estoppel is sought to maintain a position which is inconsistent with the one in which he accepted a benefit.Dawson v. Mead, 98 Idaho 1, 557 P.2d 595(1976);KTVB, Inc. v. Boise City, 94 Idaho 279, 486 P.2d 992(1971)."Tommerup v. Albertson's Inc., 101 Idaho 1, 6, 607 P.2d 1055, 1060(1980).

Firstly, it was plaintiff who filed for the divorce, and as stated previously she argued at the summary judgment hearing on September 20, 1976, that the divorce should be granted.This divorce, which was granted on the grounds argued by plaintiff, allowed her to be rid of her husband which she wanted, and thus conferred a benefit, and also allowed defendant to change his position in that he remarried on September 21, 1976.

Secondly, plaintiff has taken advantage of the favorable provisions of the judgment.She has received large amounts of property, has had repeated executions issued on the judgment and received approximately $67,000 in cash in settlement of certain of those executions and she is now seeking to maintain a position which is inconsistent with the one in which she accepted those benefits.SeeCulbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768(1975).

This case is similar to Willis v. Willis, 93 Idaho 261, 460 P.2d 396(1969).In Willis, the wife attempted to vacate the decree under I.R.C.P. 60(b).This Court stated:

"Additionally, appellant has accepted all the benefits of the divorce decree and the provisions of the property settlement agreement.So far as the record is concerned there is no showing she made any offer or tender to restore or return any of the property or funds, except upon a court ordered recission of the agreement and under such circumstances the court looks with disfavor upon a motion for relief under Rule 60(b)."Id. at 265, 460 P.2d at 400.

Because plaintiff initially sought the divorce and argued that a divorce should be granted to her, and the entry of the decree enabled defendant to remarry, as he did, and the plaintiff took advantage of the favorable provisions of the decree of divorce, we hold that it is unconscionable for her to now maintain an inconsistent position, and therefore, she is estopped to deny its validity.

Plaintiff also asserts that the trial court erred in its conclusion that the evidence was insufficient upon which to base a finding of adultery by the defendant.Divorces based on adultery should be granted only upon very clear and conclusive evidence of the adultery.E.g., Leonard v. Leonard, 88 Idaho 485, 401 P.2d 541(1965).The record before us supports the conclusion of the trial court that plaintiff failed to carry the burden of proof of adultery.

Plaintiff next asserts that the trial court erred in its award of child support.Plaintiff argues that the court award of $150 per month was inadequate and that the child support award should have been at least $200 per month.Child support awards rest in the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion.E.g., Fuller v. Fuller, 101 Idaho 40, 607 P.2d 1314(1980).Here, considering the circumstances of the parties and the finances available, the trial court's award of child support was certainly modest.However, considering the finances available to plaintiffthe trial court may well have concluded, and justifiably so, that both parents were able to and should participate in the support of the minor child.We find no abuse of discretion.

Defendant asserts error in that portion of the court's order requiring him to pay all of plaintiff's attorney fees above the amount of $12,583 incurred during the divorce and property settlement proceedings.This amounted to approximately $6,000.It is asserted that the trial court erred in awarding those attorney fees after the community property had been divided.We agree.

"We have ruled that the proper manner of carrying out the mandate of this section(I.C. §§ 32-708,32-704) is to satisfy the community debts, then the wife's temporary support and attorney fees, from the total property owned by the community before equitable division of the proeprty."Mifflin v. Mifflin, 97 Idaho 895, 897,...