Rudd v. Rudd
| Decision Date | 08 July 1983 |
| Docket Number | No. 14252,14252 |
| Citation | 666 P.2d 639,105 Idaho 112 |
| Parties | Virginia Mae RUDD, Plaintiff, Cross-defendant, Respondent, v. Clarence J. RUDD, Defendant, Cross-plaintiff, Appellant. |
| Court | Idaho Supreme Court |
Clarence J. Rudd, pro se.
Danny J. Radakovich of Rapaich & Knutson, Lewiston, for plaintiff, cross-defendant, respondent.
This case stems from an action for divorce and property division originally filed by respondent on June 3, 1974. Appellant is appealing the decision of the district court upholding an amended decree and property division issued by a magistrate.
Respondent filed an action for divorce in 1974. On June 4, 1975, the magistrate issued a decree of divorce dividing the personalty of the parties and ordering the real property sold and the proceeds divided, after deducting costs. Appellant attempted to appeal this decision, but his appeal was dismissed. The magistrate then issued an order of sale, which was not acted upon, thus leaving the parties' property unsold and undivided.
On November 9, 1979, respondent's attorney filed a motion asking the court for an order dividing the remainder of the community property. After a hearing, the magistrate issued findings of fact and conclusions of law, in which he stated that he was treating the motion as a Rule 60(b)(5) motion for relief from the original decree. Due to the changed condition of the parties' property, he concluded that it was no longer equitable to apply the original decree, and thus set it aside and issued an amended decree on June 13, 1980.
On July 11, 1980, appellant filed a notice of appeal to the district court from the amended decree. A hearing on a motion to dismiss the appeal was held before the district court on January 29, 1981. The district court later issued an opinion and order on June 12, 1981, affirming the amended decree.
Appellant filed a notice of appeal with this Court, alleging violation of his constitutional rights and lack of jurisdiction on the part of the trial judge. Among the errors appellant argues are: (1) that he was denied his due process rights; (2) that he was denied his right to a jury trial; (3) that he was wrongfully denied a change of venue; (4) that the magistrate who originally heard the case lacked jurisdiction; and (5) that the magistrate lacked jurisdiction to issue the amended decree. We will consider appellant's alleged errors in the above order.
Appellant alleges that he was denied due process of law. He alleges that his property was taken without a hearing as required by the Constitution. The United States Constitution provides:
"[N]or shall any state deprive any person of life, liberty, or property, without due process of law ...." U.S. Const. amend. XIV.
Due process of law is also guaranteed under the Idaho Constitution. It reads:
"No person shall be ... deprived of life, liberty or property without due process of law." Idaho Const. art. 1, § 13.
The due process guarantees derived from both the United States Constitution and the Idaho Constitution are substantially the same. State v. Peterson, 81 Idaho 233, 340 P.2d 444 (1959).
The right to procedural due process guaranteed under both the Idaho and United States Constitutions requires that a person involved in the judicial process be given meaningful notice and a meaningful opportunity to be heard. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).
Appellant was given notice of the respondent's motions to modify the sale and for division of property. A certification is included on both of these documents indicating that copies were delivered to appellant. Both include notices of hearing dates. Further, there appears in the record an order to appear at a hearing scheduled by the magistrate, with a certification of delivery of a copy of this notice to the defendant.
Appellant received the hearings to which he is entitled under the Constitution. There is evidence in the record that hearings were held on several dates, including November 13, 1978, and February 9, 1979. 1 Although we do not know what issues were discussed at those hearings because transcripts were not included in the record on appeal, the magistrate, in his amended decree, noted the following:
"[V]arious hearings were held, testimony presented, stipulations made, and property disposed of ...."
This indicates that the magistrate conducted a hearing for the purpose of determining the disputed issues between the parties. This is all that is required to meet the procedural due process guarantees under either Constitution. Appellant was not denied his right to procedural due process. 2
Appellant alleges a denial of his right to a jury trial. 3 He claims that a jury should have been allowed to resolve the disputed property claims involved in this action. The Idaho Constitution guarantees the right to a jury trial in cases arising at common law. See Idaho Const. art. 1, § 7.
This provision's "function is to preserve the right [to a jury trial] as it existed at the date of the adoption of the Constitution." Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351 (1951). Historically, the right to trial by jury existed only in cases at common law, not in cases triable in a court of equity. Thus, by preserving the right as it existed, this constitutional provision merely preserves the right to a trial by jury in cases at common law. "Th[is provision was] not intended to and do[es] not extend the right of trial by jury to suits in equity." Anderson v. Whipple, supra.
In Idaho, an action for divorce is an action in equity. Hiltbrand v. Hiltbrand, 68 Idaho 275, 193 P.2d 391 (1948). Thus, the right to a jury trial does not exist in divorce actions. Since no right existed, appellant was not denied any constitutional rights under Article 1, § 7, of the Idaho Constitution.
Appellant argues he was wrongfully denied a change of venue. He combines this argument with his jurisdictional argument, saying that because a change of venue was filed, the magistrate had no jurisdiction to act.
Appellant misconstrues the rules concerning changes of venue. The mere filing of a request for change of venue does not deprive a judge of jurisdiction to hear the cause.
I.C. § 5-404, which governs changes of venue, provides that:
This section applies to divorce actions. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938). In the present case, appellant, the defendant, resides in Nez Perce County. The record shows that the present action was filed in Nez Perce County. 4 Thus, the case as originally filed complied with I.C. § 5-404.
A change of venue can be granted pursuant to I.R.C.P. 40(e). That rule reads:
"RULE 40(e). CHANGE OF VENUE.--(1) Judge or magistrate may grant a change of venue or change the place of trial to another county in any civil action as provided by statute, and the judge or magistrate must, on motion pursuant to Rule 12(b), change the venue of a trial when it appears by affidavit or other satisfactory proof:
....
(B) That there is reason to believe that an impartial trial cannot be had therein, ...." (Emphasis added.)
Thus, a motion for change of venue is discretionary with the trial judge unless two criteria are met. First, the movant must make a motion under Rule 12(b), and second, the movant must present satisfactory proof of impartiality or other reason cited by the rule. Appellant has complied with neither of these requirements.
First, Rule 12(b) requires that a motion for change of venue be made before the party making the motion enters a responsive pleading, if one is permitted. I.R.C.P. 12(h) provides that a motion for change of venue under Rule 12(b) is waived if the assertion is not made pursuant to the rule or included in a responsive pleading. In the present case, appellant's motion for change of venue was not filed until February 7, 1979, whereas the last responsive pleading filed by appellant was filed on July 29, 1974. Thus, under Rule 12(b) appellant waived his right to assert a motion for change of venue.
In addition, a movant must assert a proper ground before a change of venue will be granted. In this case appellant alleges that he could not receive an impartial hearing before this magistrate. However, that is not a ground for change of venue under Rule 40(e). 5
Appellant argues that the magistrate who heard this action lacked the jurisdiction to do so. He asserts that magistrates lack the jurisdiction to hear cases involving more than $1,000 in controversy. The rule that governed the jurisdiction of attorney magistrates at the time this action commenced 6 was Rule 25 of the Rules of the Court for Magistrates Division of the District Court and District Court. That rule reads:
....
"(c) all proceedings for divorce, separate maintenance or annulment ...." 7
Appellant mistakenly attempts to apply subsection (a) of Rule 25 to the present case, when the proper subsection to apply is subsection (c) of that rule. A lawyer magistrate is given jurisdiction over all proceedings in a divorce action. Since all of the proceedings involved in this case including the property division concerned the divorce action pending between the parties, the magistrate had jurisdiction of this action. 8
Finally, appellant argues that the...
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