Swope v. Swope

• Decision Date: 31 March 1987
• Docket Number: No. 16337,16337
• Citation: 739 P.2d 273,112 Idaho 974
• Parties: , 55 USLW 2615 Charles H. SWOPE, Plaintiff, Counterdefendant, Respondent, v. Isabel SWOPE, Defendant, Counterclaimant, Appellant.
• Court: Idaho Supreme Court

Page 273

739 P.2d 273

112 Idaho 974, 55 USLW 2615

Charles H. SWOPE, Plaintiff, Counterdefendant, Respondent, v. Isabel SWOPE, Defendant, Counterclaimant, Appellant.

No. 16337.

Supreme Court of Idaho.

March 31, 1987.

Rehearing Denied June 18, 1987.

Jeffrey E. Rolig, of Hepworth, Nungester & Felton, Twin Falls, for defendant, counterclaimant, appellant.

Lloyd J. Webb, of Webb, Burton, Carlson & Pedersen, Twin Falls, for plaintiff, counterdefendant, respondent.

BAKES, Justice.

This is an appeal from a property distribution in a divorce action. Isabel Swope (Isabel) appeals from a district court decision which affirmed in part, reversed in part and remanded a magistrate's order which had divided the property of Isabel and her former husband Charles Swope (Charles), respondent.

Isabel and Charles were married on July 31, 1976, and separated during the fall of 1980. The divorce was initiated by Charles on November 17, 1980. On December 12, 1980, Charles moved for partial summary judgment on the divorce issue which was granted on January 21, 1981. Neither party moved to have the magistrate certify the partial summary judgment as final under I.R.C.P. 54(b), and the action continued concerning the characterization, valuation and division of the property. During the pendency of the remainder of the action, a reunion of the parties (including cohabitation) took place, beginning in August of 1981, which lasted for approximately twelve months. However, there was no ceremonial remarriage of the parties.

When the reconciliation failed, and the parties separated again, the magistrate entered an order requiring Charles to pay to Isabel from the community property, most of which had remained in Charles' possession, the sum of $1,000 per month. This payment was to be offset against the amount of community property that Isabel would ultimately be entitled to.

Following trial, the magistrate entered his findings of fact and memorandum decision on February 6, 1984, in which he divided the property of the parties. On the issues which are raised on this appeal, the magistrate ruled that (1) the partial summary judgment entered January 21, 1981, did not terminate the marriage or the community, which continued until the magistrate entered his final judgment in February of 1984; (2) that no decision was necessary on the issue of whether or not the reconciliation constituted a common law remarriage, since the magistrate had ruled that the marriage was not terminated until February of 1984; (3) that Charles' undistributed earnings from a one-fourth interest in a separate property partnership, and the retained earnings attributable to his separate property stock in a Subchapter "S" corporation were not community property; (4) that money in a bank account which originally had been Charles' separate property was so comingled as to make the entire account community property.

Charles filed an appeal from this decision with the district court, and Isabel cross appealed. The district court reversed the magistrate on issues (1) and (2), ruling that the divorce was final on the date of the partial summary judgment and remanded the case to the magistrate to characterize and value all property in the dispute as of the date of the partial summary judgment and, further, to determine whether Charles and Isabel were involved in a common law marriage during their reconciliation during 1981 and 1982.

On appeal to this Court Isabel raises five issues regarding the effective date of the divorce and the distribution of property.

I

The first issue we must address is whether the district court erred in reversing the magistrate's conclusion that the marriage of Isabel and Charles was not terminated by the partial summary judgment on January 21, 1981. The magistrate ruled that the partial summary judgment granting the divorce was not final, there being no I.R.C.P. 54(b) certificate attached, and that the parties were still married until the date of the trial on the property issues. He characterized and valued the property as of that date. Accordingly, the magistrate found it unnecessary to rule on the question of whether the reconciliation resulted in a common law marriage.

The district court reversed the magistrate and held that the divorce was effective on the date partial summary judgment was granted, even though there was no I.R.C.P. 54(b) certificate attached by the trial court. The district court then remanded the case for valuation of the assets existing at the time of the granting of the partial summary judgment. The district court also directed that the magistrate make findings on whether there had been a common law marriage as a result of the reconciliation. We agree with the magistrate's ruling and reverse the district court.

I.C. § 32-601 sets out the only manner in which marriages may be dissolved. Newell v. Newell, 77 Idaho 355, 293 P.2d 663 (1956).

"32-601. Dissolution of marriage.--Marriage is dissolved only:

"1. By the death of one of the parties; or

"2. By the judgment of a court of competent jurisdiction decreeing a divorce of the parties."

Prior to the adoption of the Federal Rules of Civil Procedure in 1959, it was the longstanding interpretation of I.C. § 32-601 that the courts could not recognize or authorize an interlocutory judgment of divorce. Newell v. Newell, 77 Idaho 355, 362, 293 P.2d 663, 667 (1956); Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940). In Newell v. Newell, supra, the Court stated:

"The divorce laws of Idaho make no provision for an interlocutory judgment of divorce, I.C. Title 32, chapters 6, 7 and 8; nor recognize the right to a divorce from bed and board. Radermacher v. Radermacher, 61 Idaho 261, at 269, 100 P.2d 955." 77 Idaho at 362, 293 P.2d at 667.

Even after Idaho adopted the Federal Rules of Civil Procedure in 1959, the rule expressed in Newell v. Newell, supra, requiring a final decree before divorce is legally final, was applied in our cases. See Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976); In re Duncan, 83 Idaho 254, 360 P.2d 987 (1961). However, the adoption of the federal rules, and more specifically 54(b), ¹ and the adoption of the Idaho Appellate Rules, more specifically I.A.R. 11, ² has modified to some extent the Newell rule. I.A.R. 11 and Idaho Rule of Civil Procedure 54(b) provide a way for litigating parties to seek appellate review of interlocutory issues resolved at the trial court level, when the entire case has not been totally resolved. However, to have such a partial summary judgment considered as a final judgment it must be shown that "there is no just reason for delay," and "[i]n the event that the trial court determines that a judgment should be certified as final ... the court shall execute a certificate...." I.R.C.P. 54(b) (emphasis added). It is the I.R.C.P. 54(b) certificate which determines that the judgment is a final judgment upon which execution may issue and which may be appealed.

How and when marriages can be consummated or terminated is a matter for the legislature.

"The legislature of each state has the power to control and to regulate marriages within its jurisdiction. This includes the power to regulate the qualifications of the contracting parties and the proceedings essential to constitute a marriage.... [Citing cases.]

"A state may declare what marriages it will recognize as valid no matter where performed and a claimed or purported marriage may be declared void when it is contrary to the positive law of the state of the domicile of the parties." In re Duncan, 83 Idaho at 259-260, 360 P.2d at 990.

Many states not only do not recognize interlocutory divorce decrees, but have statutes imposing a "cooling off" period, requiring either a period of time delaying the time of filing a complaint or the entry of a final divorce decree, or a provision that a final divorce decree will, nevertheless, remain interlocutory for a stated statutory period, usually three to six months. Annot Divorce--Cooling Off Period, 62 A.L.R.2d 1262, 1266 (1958).

"These statutes have been of two principal types: (1) those which require delay, such as six months, between the commission of the offense and the filing of the petition which complains of it; and (2) those which require delay between the filing of the petition (or service of the process) and the date of the trial. The most obvious purpose of such a statute is to give the parties time to 'cool off,' or the time for reflection, so that they may effect a reconciliation." 24 Am.Jur.2d, Divorce and Separation, § 337 (1983).

The purpose behind such statutes is to encourage reconciliations and thereby preserve the institution of marriage in our society.

In our view, in divorce actions I.R.C.P. 54(b) serves such a function. It gives the discretion to the trial court to evaluate the parties to determine whether or not, in his opinion, a reconciliation is possible or desirable. If the trial court determines that, in his best judgment, a reconciliation is neither possible nor desirable, he may immediately certify a partial summary judgment of divorce as final under I.R.C.P. 54(b) prior to the time that the balance of the property issues are decided. However, if in the opinion of the trial court there is a possibility that the parties might reconcile, and that a "cooling off" period is desirable, he may grant a partial summary judgment of divorce, thereby removing that issue from further litigation, but refuse to certify it as final, thereby encouraging reconciliations. The decision to grant or deny a 54(b) certificate is, by the rules of civil procedure, vested in the sound discretion of the trial judge who is best able to evaluate the situation before him. Such a discretion vested in the trial court advances both the interests of the parties and of society. Where speed and finality best suit the needs of the parties, the trial court can move with dispatch in rendering a partial judgment of divorce...