Suter v. Suter, 11788

• Decision Date: 26 February 1976
• Docket Number: No. 11788,11788
• Citation: 97 Idaho 461,546 P.2d 1169
• Parties: , 83 A.L.R.3d 1283 Joan SUTER, Plaintiff-Appellant and Cross-Respondent, v. Max O. SUTER, Defendant-Respondent and Cross-Appellant.
• Court: Idaho Supreme Court

Page 1169

546 P.2d 1169

97 Idaho 461, 83 A.L.R.3d 1283

Joan SUTER, Plaintiff-Appellant and Cross-Respondent, v. Max O. SUTER, Defendant-Respondent and Cross-Appellant.

No. 11788.

Supreme Court of Idaho.

Feb. 26, 1976.

Jay D. Sudweeks of May, May, Sudweeks & Fuller, Twin Falls, for plaintiff-appellant and cross-respondent.

J. William Hart of Hepworth, Nungester, Felton & Hart, Jerome, for defendant-respondent and cross-appellant.

McFADDEN, Justice.

Joan Suter, the plaintiff-appellant and cross-respondent, instituted this action for divorce and division of property against her husband, Max O. Suter, the defendant-respondent and cross-appellant. The trial court entered its judgment granting the divorce and dividing the community property. Joan Suter, the appellant, appealed from the judgment claiming the trial court erred in division of the community assets, and Max O. Suter, the respondent, cross appealed from the decree, also claiming that the trial court erred in its division of the property.

The Suters were married on January 1, 1952. They lived together until they separated in April, 1971. During their marriage three sons were born, only one of whom was underage at the time of the hearing of the divorce action in July, 1974. During the course of their marriage, the parties farmed land owned by respondent, and other farm property leased by respondent from his father.

In the spring of 1951, upon respondent Suter's graduation from high school and before his marriage, he received an oral gift of 80 acres of land from his parents, purportedly as a graduation gift. Suter took possession of the property and commenced improving it by clearing it of sagebrush and ditching it. In 1958, a quitclaim deed to this land was executed by Mr. Suter's parents, naming both Mr. and Mrs. Suter as grantees therein.

Shortly after the marriage, Mr. Suter's father borrowed about $3,500 to purchase certain shares of irrigation water to be used on the premises. Suter paid on this loan for five years. In 1958, Suter's parents together with Suter and his wife executed another loan and mortgage for $6,500, which was sufficient to liquidate the first debt and make other improvements. At the time of trial, Suter testified he still owed about $2,500 on this debt. Both Suter and his father paid on the second loan.

During the trial a real estate broker testified that, at the time of trial, the irrigation water made available by the loan increased the market value of the 80 acres by $4,000. The farming operation grew during the marriage and Suter also began a trucking operation in advance of the 1971 separation. The parties stipulated that at the time of the separation the farm machinery was worth $7,368 and that it had increased in value to $20,000 at the date of the trial. The parties' three sons remained on the farm with Suter after the separation and he provided the home and support for the two sons who were single. After the separation, Mrs. Suter obtained employment and was living in a nearby town, but did not contribute financially to the support of the children or to the development of the community.

From the time of the separation until the time of trial, Mr. Suter had the use and control of all the community property except some furniture, a car, a television set and a bank account from which the appellant drew approximately $1,000.

The trial court found that the evidence failed to disclose any community improvements which enhanced the value of the 80 acres and for which the community would be entitled to reimbursement. In establishing the value of the community property, the court included the farm machinery at its stipulated value at the date of the trial rather than the value at the date of the separation, included all the vehicles involved in the trucking operation as community property even though some were purchased after the separation, and excluded all income from the 1974 crop and milk operation.

Appellant Joan Suter assigns as error: the trial court's determination that the eighty-acre farm was the respondent's separate property; its finding that she failed to demonstrate community improvements to the 80 acres for which the community would be entitled to reimbursement; and the failure of the trial court to divide the earnings received by respondent husband from the use of the community property during the three-year period between the separation and the trial of the case.

Respondent Max O. Suter, in his cross appeal, assigns error to the trial court's action in fixing the valuation of the farm machinery as of the time of trial ($20,000) as opposed to the valuation at the time of separation, and the action of the court in including the four vehicles used in the trucking business as a part of the community property.

The issues raised by the assignments of error classify themselves into three categories which will be discussed herein, i. e., the status of the eighty-acre farm, reimbursement for improvements to the farm, and the status of earnings after separation of the parties.

The Eighty-acre Farm

The essence of the appellant's argument regarding the eighty-acre farm is that the respondent failed to establish a valid, oral gift from his parents to him in 1951, prior to his marriage to the appellant, and that this property should be treated and considered as community property of the parties by reason of the execution and delivery to them of the quitclaim deed ¹ wherein the two of them were named as grantees. The appellant argues that the respondent failed to establish that both of his parents joined in the oral gift of land, and thereby failed to carry his burden of proof that his parents made a valid, oral gift of the property in 1951. She further contends that the statute of frauds ² invalidated the purported, oral gift of land. However, it is the conclusion of this court that the trial court did not err in its ruling that respondent Max O. Suter met his burden of proving the validity and enforceability of the 1951 oral gift and that he thereafter has owned the land as his separate property. I.C. § 32-903.

Idaho Code section 32-912 ³ requires that both spouses join in the instrument of conveyance of community real estate. The logic and policy underlying the statute require that both spouses also join in an oral gift of community real estate. Since a married person, acting alone, cannot encumber, sell, or otherwise convey community real estate by document, the same prohibition against solitary action applies with equal force to an oral effort to achieve the same result. The essence of joint action applies regardless of the manner in which the action is manifested. No one questions that in 1951 the elder Suters held a community interest in the eighty-acre farm. Both of them consequently had to join in the purported gift of the land that year to their son, Max Suter, to make the gift valid. It is the conclusion of this court that the testimony of all interested parties at the trial provides sufficient, competent evidence to sustain the trial court's finding that the respondent's parents gave him the land in 1951. Max Suter testified about the manner in which he acquired the 80 acres: 'I obtained that when my parents told me I could have that as a graduation gift, raw ground.' (Emphasis supplied.) Equally indicative of a joint gift, the appellant herself testified concerning the land: 'His folks did give him that amount of ground for and as a graduation gift.' (Emphasis supplied.) 'Findings of fact shall not be set aside unless clearly erroneous.' I.R.C.P. 52(a). The explicit testimony of both immediate parties enables the finding of fact of a gift to Mr. Suter from both of his parents to withstand challenge.

An exception to the requirement of a writing to convey land preserves the validity of the joint gift of the eighty-acre parcel in 1951. The appellant based her second challenge on I.C. § 9-503, ⁴ which requires a written instrument to transfer an interest in real property. This court previously has held that partial or complete performance of an oral contract to convey land takes the transaction out of the statute of frauds. I.C. § 9-504; Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963); McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960); Anselmo v. Beardmore, 70 Idaho 392, 219 P.2d 946 (1950); Wood v. Hill, 70 Idaho 93, 212 P.2d 391 (1949). This court, however, has not addressed the requirement of a writing in the context of an oral gift of real property. Courts in other states have examined such a relationship and their conclusions merit application in this case.

Oral gifts of land generally fall within the terms of the statute of frauds and are invalid, but the conditions of a particular case can take it out of the operation of the statute, especially when the donee has taken exclusive possession under the gift and has made valuable and permanent improvements to the realty. Green v. Brown, 37 Cal.2d 391, 232 P.2d 487 (1951); Andreotti v. Andreotti, 224 Cal.App.2d 533, 36 Cal.Rptr. 709 (1964); Pocius v. Fleck, 13 Ill.2d 420, 150 N.E.2d 106 (1958); Lynch v. Lynch, 239 Iowa 1245, 34 N.W.2d 485 (1948); Lembke v. Lembke, 194 Iowa 808, 187 N.W. 863 (1922); Holohan v. McCarthy, 130 Or. 577, 281 P. 178 (1929); Lang v. Lang, 140 Pa.Super. 356, 14 A.2d 216 (1940); Willacy County Water Control and Improvement Dist. No. One v. Todd, 255 S.W.2d 320 (Tex.Civ.App.1952); Norwood v. Childress, 250 S.W.2d 927 (Tex.Civ.App.1952); Steinman Coal Corp. v. Fleming, 145 Va. 731, 134 S.E. 696 (1926); Roesch v. Gerst, 18 Wash.2d 294, 138 P.2d 846 (1943). The testimony at the trial sufficiently supports the finding of the trial court that the respondent took exclusive possession of the 80 acres after the 1951 oral gift and thereafter proceeded to clear the land and make other permanent improvements. It is the conclusion of this court that such possession and improvements took this case out of the statute of...