Shepard v. Shepard, 10949

• Decision Date: 19 May 1972
• Docket Number: No. 10949,10949
• Citation: 94 Idaho 734,497 P.2d 321
• Parties: Allan G. SHEPARD, Plaintiff-Respondent, v. Beverly J. SHEPARD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 321

497 P.2d 321

94 Idaho 734

Allan G. SHEPARD, Plaintiff-Respondent, v. Beverly J. SHEPARD, Defendant-Appellant.

No. 10949.

Supreme Court of Idaho.

May 19, 1972.

Marcus & Marcus, Boise, for appellant.

Elam, Burke, Jeppesen, Evans & Boyd, Boise, for appellee.

BAKES, Justice.

This is an appeal from a judgment of the Fourth Judicial District Court entered April 6, 1971, in a divorce action brought by respondent allan G. Shepard against appellant Beverly J. Shepard.

After an extended trial, the trial court awarded a divorce to both appellant and respondent; made a division of the community property; granted custody of the minor son to respondent-husband and the minor daughter to appellant-wife; allowed appellant-wife $100 a month for the support and maintenance of the minor daughter; and awarded appellant-wife $200 a month permanent alimony. Appellant raises six assignments of error alleged to have been committed by the trial court.

First, appellant contends that the trial court erred in granting a divorce to both parties, claiming that only she had proven grounds for divorce. In this regard the trial court found that 'each party during their marriage has inflicted grievous mental suffering upon the other.' (Finding of Fact II.) Based upon that finding the court entered its conclusion of law that 'each of the parties is entitled to a divorce from the other.' This court, in Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (1967), and Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960), noted that the trial court is entitled to award a divorce to both parties to a marriage where both have been guilty of extreme cruelty. We have reviewed the record at great length and find that there is substantial and competent evidence to support this conclusion of the trial court and therefore it will not be disturbed on appeal. As stated in Brammer v. Brammer, 93 Idaho 671, 674, 471 P.2d 58, at 61 (1970):

'It has long been the rule of this Court that where there is sufficient substantial and competent evidence to support the findings of the trial court and such findings are not clearly against the weight of the evidence, the findings are binding on the Supreme Court and will not be disturbed on appeal. Howay v. Howay, 74 Idaho 492, 264 P.2d 691 (1953). The trial judge is the arbiter of conflicting evidence and his determination of the weight, credibility, inferences and implications thereof is no to be supplanted by this Court's impressions or conclusions from the written record. Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063 (1952); Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (1919). This is so because the trial court has a better opportunity to judge this matter because of seeing and noting the demeanor of the witnesses. Keezer on the Law of Marriage & Divorce, § 881, p. 877 (3d ed. 1946).'

The appellant next assigns as error the trial court's division of the community property alleging that more than one half of the community property was awarded to respondent and, further, that the court erred in failing to award more than one half of the community property to appellant. The trial court made what it felt to be a substantially equal division of the community property by giving appellant-wife the household furnishings and the 1969 Mercury owned by the parties, which property was free of encumbrances, and awarding respondent-husband the 1968 Buick, his vested retirement in the Idaho Public Employees' Retirement System, and two insurance policies. The 1968 Buick and the insurance policies were encumbered to secure loans. The family home was ordered sold and the proceeds were to be applied first against community indebtedness (except the indebtedness against the property awarded to respondent) and the remainder to be divided equally between the parties. Cf. Davis v. Davis, supra. An exact mathematical division of property is neither required nor likely to be obtained when different items of personal property are divided between the parties. The division of the property in this case was substantially equal, and such a division has long been supported by the decisions of this court. Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116; Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968); Brammer v. Brammer, supra; Davis v. Davis, supra. The division of community property is a matter within the sound discretion of the trial court and, in the absence of a clear showing of abuse of such discretion, the award will not be disturbed on appeal. I.C. 32-712; Brammer v. Brammer, supra; Davis v. Davis, supra.

In order to provide for the payment of community debts, the trial court ordered the mortgaged community home sold, with nay net proceeds to be divided equally between the parties. The fact that respondent was allowed 90 days to effect and account for the sale before a receiver would be appointed by the court to sell the property was apparently an effort by the trial court to avoid any additional expense in liquidating the property and was a reasonable exercise of the court's equitable powers. See Davis v. Davis, supra; Nichols v. Nichols, 84 Idaho 379, 372 P.2d 758 (1962). I.C. 32-713. Huskinson v. Huskinson, 92 Idaho 920, 453 P.2d 569 (1969). No error was committed by the trial court.

Appellant's next assignment alleges that the district court erred in limiting the temporary allowances to the appellant-wife during the pendency of the trial, and erred in making no adjustments for appellant's costs. The award of temporary allowances is authorized by I.C. 32-704, but that section explicitly provides that the making of the award is committed to the discretion of the trial court. Wyatt v. Wyatt, 2 Idaho 236, 238, 10 P. 226 (1886); See Embree v. Embree, 85 Idaho 443, 452, 380 P.2d 216 (1963); Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921). The court terminated the temporary allowances when appellant obtained full time employment with the Idaho Legislature. In the absence of any factual showing that the wife is unable to finance the litigation or support hereself, which would indicate that the trial court's amount of such award was an abuse of discretion, the rulings of the trial court will not be disturbed on appeal. E. g., Turner v. Turner, 90 Idaho 308, 317, 410 P.2d 648 (1966). There being no abuse of discretion by the trial court, we find no error in the amount of the temporary award or the lack of adjustment for costs.

The final assignments of error will be considered together in view of the their intertwining nature. The appellant alleges that the trial court abused its discretion in allowing only $100 per month child support, $200 per month permanent alimony, and that the court erred in overruling appellant's objections to its findings of fact and conclusions of law, and further erred in refusing to amend or supplement its findings to make them more explicit. In interpreting Rule 52(a) of the Idaho Rules of Civil Procedure this court stated, in Clements v. Clements, 91 Idaho 732, 430 P.2d 98, at 101 (1967):

'The purpose of required findings of fact and conclusions of law is to aid the appellate court by affording it a clear understanding of the basis of the decision of the trial court. The absence of findings may be disregarded by the appellate court if the record is so clear that the court does not need their aid for a complete understanding of the issues. Call v. Marler, 89...