Saviers v. Saviers

• Decision Date: 26 February 1968
• Docket Number: No. 9971,9971
• Citation: 438 P.2d 268,92 Idaho 117
• Parties: Patricia P. SAVIERS, Plaintiff-Appellant, v. George B. SAVIERS, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 268

438 P.2d 268

92 Idaho 117

Patricia P. SAVIERS, Plaintiff-Appellant, v. George B. SAVIERS, Defendant-Respondent.

No. 9971.

Supreme Court of Idaho.

Feb. 26, 1968.

Balleisen & Galley and Benoit & Benoit, Twin Falls, Elam, Burke, Jeppesen & Evans, Boise, for appellant.

Parry, Robertson & Daly, Twin Falls, George R. Kneeland, Ketchum, for appellee.

SPEAR, Justice.

Patricia Saviers (appellant herein) brought an action for divorce against her husband, Dr. George Saviers (respondent) upon the ground of extreme cruelty. Respondent counterclaimed alleging that appellant was guilty of extreme cruelty and asked that the divorce be granted in his favor. The trial court rendered a decree of divorce in favor of respondent, divided the community property equally, and gave actual custody of the children to appellant so long as she lived with all or any one of them in the family home, but gave legal custody and control to respondent.

On appeal, appellant contends that the trial court erred in failing to give her full legal custody of the children, in requiring that the family home, while appellant is living therein, be maintained primarily for the social welfare of the children, in failing to award her permanent alimony, and in failing to consider respondent's interest in a medical partnership as a community asset in dividing up the property.

The pertinent facts are to be found in the following Amended Findings of Fact of the trial court:

'II.

'Plaintiff and defendant were married on or about July 18, 1947, in Sacramento, California, and since that time have been husband and wife.

'III.

'Four children have been born the issue of this marriage, namely, George B. Saviers, Jr., born June 8, 1950, Frederick G. Saviers, born December 11, 1951, John Peter Saviers, born January 18, 1953, and Georgia Marie Saviers, born January 29, 1956.

'VI.

'The plaintiff is a duly licensed architect and throughout this marriage has engaged in the practice of this profession.

'VII.

'The defendant is a licensed physician and is a member of a partnership engaged in the practice of medicine known as the Sun Valley Medical Group; the Sun Valley Medical Group owns no real property or tangible personal property and no item of good will appears on the books of this partnership. The evidence does not show any value or vested equity of the community in the partnership of the Sun Valley Medical Group.

'VIII.

'By her actions, during the marriage, the plaintiff inflicted upon the defendant grievous mental suffering and destroyed all of the legitimate objects of this marriage.CC'IX.

'Defendant is a fit and proper person to have the care, custody and control of the children of the parties and it is for the best interests of the children that he be granted such care, custody and control.

'X.

'Each of the parties love the children and the children have a deep love and respect for each of their parents. The children feel insecurity and indecision as to the plaintiff and feel security, firmness and guidance with the defendant.

'XI.

'The plaintiff should continue to give the children her love, affection and guidance and should have the right to live in the home with the children to fully accomplish this purpose. This right to live in the home should continue so long as the home is maintained for the children and the children, or any of them continue to make the present family home their home. While the plaintiff is living in the home the cost of that portion of her support occasioned thereby should be paid by the defendant as a general cost of maintaining the home for the children.

'XII.

'Since the birth of the first child of the parties up to the present time, there has always been someone in the home to do the general housekeeping and help with the children, and this should generally continue. The home of the parties should be maintained primarily and basically for the children, and, while either the plaintiff or the defendant may have family friends in the home, this should only be done when it is for the social welfare of the children as distinguished from having social functions for the benefit of either the plaintiff or defendant. Any such social functions should by their very nature not last into extraordinarily late hours and should be centered around the children as distinguished from the adult members of the family. Such social functions would include small parties for the friends and classmates of the children as adult friends of the family and relatives of the children including the children's grandparents, for whom the children seem to have a very deep and normal love, as do the grandparents for the children. Further, the children should be able to visit their grandparents at reasonable times.

'XIII.

'The defendant shall be responsible for, but shall have control of, the expenses of the home including the wages of the housekeeper. A petty cash fund of $75.00 per month for home maintenance and child care shall be paid by the defendant to the plaintiff and should be under the general control of the plaintiff. This petty cash fund is for the plaintiff's own use in providing the usual small incidental costs that are incurred by a mother from time to time for the benefit of the children and to take care of such incidentals as admission charges to entertainments provided for the children in the community which by their very nature might include the mother in attendance; treats for the friends and classmates of the children and other items which normally would not be available on charge accounts in the community.

'XIV.

'The defendant, as agreed, should furnish the necessary educational costs for said children including the present public school, preparatory school, trade school, or college and professional school to provide the training each child needs, has aptitude for, and to which he fully and properly applies himself.

'XV.

'All of the present insurance on the life of the defendant, as listed on plaintiff's Exhibit 3, should be used to guarantee said educational needs of the children and if the defendant pays for such educational needs as the same become necessary such insurance should pass entirely to the defendant's full control and ownership. Until that time, all or sufficient amount thereof should be pledged by the defendant to complete said educational requirements.'

These facts are amply supported by competent and substantial evidence and will not be disturbed on appeal. I.C. § 13-219, and the numerous cases annotated thereunder; Rule 52(a) I.R.C.P.; Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (Oct.1967); Clements v. Clements, 91 Idaho 732, 430 P.2d 98 (1967).

The trial court then divided the community real and personal property in half, as nearly as possible. The value of appellant's share therein exceeds $40,000.00 once the community property has been liquidated, so it is divisible.

Judgment was entered in accordance with the findings of fact and conclusions of law as delineated herein.

In appealing to this court, appellant raises four principal issues:

(1) The court erred in awarding the legal custody of the children to respondent while in effect awarding the actual custody to appellant; (2) the court erred in failing to award plaintiff permanent alimony; (3) the court erred in the restrictions placed upon appellant's use of the home of the parties, in effect enjoining appellant from having her personal friends, with the exception of friends and relatives of the children in the home; and (4) the court erred in failing to find and place a value on respondent's interest in the good will of his medical partnership. It will be noted that appellant did not appeal from that portion of the amended judgment in which respondent was granted a divorce from appellant, presumably on the grounds recited in finding of fact No. VIII, i. e., appellant's infliction upon respondent of grievous mental suffering which destroyed all the legitimate objects of the marriage of the parties.

The first issue to be discussed is whether or not trial court abused its discretion in failing to award appellant permanent alimony.

In order to decide the merits of this contention, it is first necessary to articulate those factors which must be considered in determining whether to grant or deny alimony to a wife whose husband obtains a divorce and to scrutinize the circumstances of this particular case in relation thereto. See Annotation, 34 A.L.R.2d 313 (1954).

This court has recently held that in the absence of a statutory provision expressly prohibiting such an award to a guilty spouse, a district court has the discretionary power to grant alimony by virtue of its equity jurisdiction in a case 'where the husband himself is not free from fault, and the wife's fault, though sufficient to justify a divorce to the husband, is not so grievous as to compel a denial of alimony.' Good v. Good, 79 Idaho 119, 311 P.2d 756 (1957). This rule does not, however, require that alimony be provided to an offending wife in all cases, but merely recognizes the power of a court of equity to grant such relief in proper cases. Good v. Good,supra.

In Good, the husband was granted a divorce on the grounds of extreme cruelty. The facts of that case revealed that the parties were mentally and emotionally opposites, that marriage had resulted in a nervous breakdown on the part of the wife which was not an act of guilt (fault) on her part, and that it was for the best interests of the parties, both physically and mentally, that a divorce be granted.

In its amended findings of fact, the trial court in the cause at hand stated that appellant had, by her actions, inflicted upon respondent 'grievous mental suffering' and 'destroyed all of the legitimate objects of this marriage.' The court's memorandum opinion also noted that appellant's philosophy of life had culminated in her 'final resolution to go her own way, have her own friends, and conduct herself socially as a single...