Sheppard v. Sheppard

Citation104 Idaho 1,655 P.2d 895
Decision Date16 December 1982
Docket NumberNo. 13272,13272
PartiesGeorge K. SHEPPARD, Plaintiff-Respondent, and Cross-Appellant, v. Roma SHEPPARD, Defendant-Appellant, and Cross-Respondent.
CourtIdaho Supreme Court

Archie W. Service, of Green, Service, Gasser & Kerl, Pocatello, for plaintiff-respondent, and cross-appellant.

Larry J. Echohawk, Salt Lake City, Utah, John Traylor, Fort Hall, for Shoshone-Bannock Tribes, amicus curiae.

SHEPARD, Justice.

This is an appeal from a decision of the district court which in turn had affirmed in part and reversed in part a decree of divorce entered by a magistrate court. The decree of the magistrate court ordered the parties divorced, ordered child support and custody arrangements for the three natural children of the parties, held that a purported adoption of a fourth child was invalid, held that certain real and personal property was the community property of the parties, valued the community property, ordered its distribution as between the parties, and because of the great bulk of the property being distributed to one party, ordered an offsetting monetary award to the other party payable over a number of years. Upon appeal, the district court overturned the magistrate court's ruling regarding the invalidity of the adoption of the fourth child and reversed the magistrate court's order permitting the offsetting financial award to be paid over a number of years and required such to be paid immediately, but in all other respects the district court affirmed the decree of the magistrate court. On appeal to this Court, we affirm the district court in all respects.

The principal question presented on this appeal is, we are informed, one of first impression in this and evidently any other jurisdiction, i.e., the jurisdiction of a state court over a divorce action where one of the parties is an Indian and the other party a non-Indian, and the extent to which a state court may adjudicate the status of real and/or personal property as being the community property of the parties, and the authority of such a court to either divide that community property between the parties or make an offsetting financial award in lieu of an actual division of the community property.

The facts of the instant case are relatively simple, but the legal questions that flow therefrom are complex. Defendant-appellant and cross-respondent Roma Sheppard is an Indian and an enrolled member of the Shoshone-Bannock Tribes. Plaintiff-respondent and cross-appellant George Sheppard is a non-Indian. Roma Sheppard is and evidently has been for several years employed by the Bureau of Indian Affairs, earns between $12,000 and $14,000 per year in that position, and also receives approximately $2,500 in other income. George Sheppard is a member of the faculty at Idaho State University and his only source of income is his salary of approximately $16,000 per year.

The parties were married in 1959 and three children were born of the marriage. As of the date of the original divorce decree (June, 1978), those children were 17, 16 and 13 years of age. In addition, a child, six years old at the time of the decree (the natural grandson of Roma Sheppard through a previous marriage) was allegedly adopted by the parties in the Shoshone-Bannock tribal court in 1971.

The parties, during a large part of the marriage, resided within the boundaries of the Fort Hall Shoshone-Bannock Reservation, but at some point in time the parties owned and lived in a residence in Pocatello, Idaho, outside the boundaries of the reservation. During the time of the marriage

[104 Idaho 5] real and personal property was accumulated. Several airplanes were purchased and sold during those years and the Sheppards owned one at the time of the divorce. At the time of the divorce, several motor vehicles were owned by the parties. Household goods and furnishings were accumulated and were in existence at the time of the divorce. Although the record is not totally clear, apparently the parties, largely through their own labor, constructed a residence upon property located within the reservation boundaries and owned by the father of Roma Sheppard. 1 Also acquired were two parcels of grazing land, one of 20 acres and the other of 37.99 acres, both of which were located within the boundaries of the Fort Hall Indian Reservation, and the title to which was held in the name of Roma Sheppard. Ownership of the latter parcel consisted only of a percentage of the overall title. It is unclear from the record whether those parcels consisted of "trust" property or whether they were "allotments" subject to restrictions on alienation. The parties also accumulated during the course of the marriage a somewhat substantial cattle operation, i.e., stock, ranch implements and other personalty. That cattle operation was conducted on grazing lands within the boundaries of the Fort Hall Reservation.

I. PROCEEDINGS BELOW

In July, 1977, George Sheppard brought this action for divorce. He alleged that three children were born of the marriage, indicated that their custody should be awarded to the defendant Roma Sheppard, and conceded that he should be required to pay child support. He alleged the above mentioned real and personal property was community and prayed for a division thereof in kind.

Roma Sheppard thereafter answered and counterclaimed. She alleged the existence of a fourth child by adoption, Michael Blackhawk Sheppard, and prayed for his custody and child support. Her allegations of community property included much of the property, alleged to be community property George Sheppard had, including the family home, but only 50 head of cattle and none of the grazing lands. She also alleged the existence of approximately $10,000 in community indebtedness which was secured by the livestock. She alleged the existence of certain of her separate property acquired by virtue of gifts, privileges and rights based upon her membership in the Shoshone-Bannock Tribes. She prayed that the divorce be granted, that custody of and child support for the children be decreed, and that the community property of the parties be divided subject to encumbrances thereon.

Following trial before the magistrate court, that court entered its memorandum decision, findings of fact and conclusions of law (later amended) and decree of divorce. The magistrate court awarded Roma Sheppard custody of and child support for the three natural children of the parties. As to the fourth, allegedly adopted, child, the magistrate court held that the adoption proceedings regarding that fourth child in the tribal court were deficient and that such alleged adoption was void.

The magistrate court held correctly that property acquired during the existence of the marriage is presumed to be community. The court held that even assuming the provisions of 25 U.S.C. § 194 were controlling, plaintiff George Sheppard had overcome As to the real property, the court found that the 20-acre tract, a complete undivided ownership, was held in trust for Roma Sheppard and that the consideration paid therefor was $2,250. As to the remaining tract of approximately 38 acres, the court found that it had been purchased by the parties for the sum of $2,641, and consisted of an approximately 27/30th ownership. At trial, an expert witness had testified that said property had a value of approximately $500 per acre. The magistrate judge specifically refused to adopt that valuation because of the limitations on the transfer of ownership. Rather, he held that since community property funds of $4,891 were expended in the purchase of that property, George Sheppard should be reimbursed the sum of $2,445, i.e., one-half of the community contribution.

[104 Idaho 6] any presumption granted the defendant by said section 194.

As to the cattle operation, the magistrate court meticulously traced the moneys invested therein. The court found that the parties had liquidated community property stocks and bonds (which had evidently resulted from the sale of the parties' Pocatello residence) and placed the $14,000 proceeds in the cattle operation. The court found that the parties had procured a $23,000 loan from an "Indian lending agency," evidently available only because of Roma Sheppard's tribal membership, and invested it in the cattle operation. Both parties were signatory to and liable on that loan transaction. The court found that another $8,000 had been invested in the cattle operation, representing $2,000 of claims settlement moneys for each of the four children. The court also found that another $2,000 had been invested in the cattle operation, representing Roma Sheppard's claim settlement moneys. As to that latter amount, the court held that on the evidence, it could not be established how or if that $2,000 was traced into the cattle operation.

The court, consequently, held that all moneys with the exception of the claims money of the children, had been commingled into the cattle operation and were impossible to trace and, therefore, that the cattle operation was community property. The court then awarded the children the value of their initial investment in the cattle operation with a return of eight per cent per annum thereon. The court concluded that since the cattle operation was awarded to Roma Sheppard, she could either liquidate and pay the children's interests or allow their shares to remain therein and draw interest thereon at eight per cent per annum, and that the said children's interest would be secured by a lien upon the cattle operation.

The trial court meticulously valued each and every item which it had found to be community property (down to and including two winter coats at $100 and a pair of reading glasses at $75). It found that the cattle operation, less the encumbrance and less the children's share, was of a net value of $49,847, and,...

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