White v. White

• Decision Date: 10 February 1971
• Docket Number: No. 10590,10590
• Citation: 94 Idaho 26,480 P.2d 872
• Parties: Howard WHITE, Plaintiff-Respondent, v. Beverly WHITE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 872

480 P.2d 872

94 Idaho 26

Howard WHITE, Plaintiff-Respondent, v. Beverly WHITE, Defendant-Appellant.

No. 10590.

Supreme Court of Idaho.

Feb. 10, 1971.

Racine, Huntley, Herzog & Olson, Pocatello, for defendant-appellant.

R. Don Bistline, Pocatello, for plaintiff-respondent.

Mc,QUADE, Justice.

This is an appeal from a judgment below granting Howard White (plaintiff-respondent and husband) a divorce on the grounds of extreme cruelty from Beverly White (defendant-appellant and wife).

A series of divorce actions preceded the one resulting in the judgment which is appealed here. Appellant filed the first divorce action involving this marriage in Pennsylvania in 1961, alleging that her husband had been beating her. She dismissed the action before it came to trial. Respondent filed the second action in 1963 in Pennsylvania, based on allegations of 'indignities and cruel and barbarous treatment.' This action went to trial, and resulted in a judgment denying a divorce. In 1968, respondent came to Idaho and shortly thereafter filed another divorce action, which was dismissed for failure to establish residence. Respondent returned to Pennsylvania, quit his job there, withdrew his accumulated retirement funds, and returned to Idaho. After residing in Idaho for six weeks, he filed the action which resulted in the judgment here on appeal.

The trial court found that respondent severed all connections with Pennsylvania prior to his most recent move to Idaho, that he had moved into an apartment in Pocatello and had remained in Idaho until the date of trial, and had sought and found employment in Idaho. The court concluded that respondent was a 'bona fide resident of the State of Idaho.'

Respondent sought this divorce on the grounds of extreme cruelty. The trial court, on the basis of respondent's testimony, found that the parties had not lived together or cohabited for a period of five years, and that the appellant had associated with other men and kept late hours. These findings were made by the court, which concluded they constituted sufficient basis for awarding the divorce on the grounds of extreme cruelty. The court found that the grounds alleged had not been adjudicated in any other action.

Appellant contradicted the testimony of respondent, testifying that her husband had refused to live with her, but while living next door with his mother had frequently visited her at night and had sexual relations with her. She also disputed that she had associated in any wrongful sense with other men.

Respondent and appellant have a daughter who was eighteen years old at the time of the trial court's decision. She had been living with her mother, but was away from home attending college. The court applied Idaho's law in determining that the daughter was no longer of minor status, and therefore that respondent was not legally obligated to furnish child support.

Appellant contends the trial court erred in finding respondent was a resident of Idaho for six weeks preceding this action, as required by I.C. § 32-701. Respondent alleged in his complaint that he was a bona fide resident of Idaho. Evidence supportive of this contention was introduced at trial. Where the trial court has determined the issue upon substantial and competent, though conflicting evidence, its finding will not be set aside on appeal. ¹

Respondent alleged in his complaint 'that the parties have not cohabited or lived together now for a period of five years.' Section 32-610, Idaho Code, provides:

'When married persons have heretofore lived or shall hereafter live separate and apart for a period of five (5) years or more without cohabitation, either party to the marriage contract may sue for a divorce which shall be granted on proof of the continuous living separate and apart without cohabitation of the spouses during said period * * *.'

Though respondent did not ask for relief specifically on this ground, evidence to substantiate this allegation was entered at trial in the form of testimony on the cross-examination of both appellant and the parties' daughter, and by the testimony of respondent. The trial court found that the parties had not lived together or cohabited for a period of five years. This Court has repeatedly held it will not disturb findings of fact by the trial court, where the findings are based on substantial and competent though conflicting evidence. ²

The trial court based its judgment for respondent upon a finding of extreme mental cruelty. Appellant urges this Court to reverse the judgment as unsupported by the evidence and barred by the doctrine of res judicata. In particular, it is urged that respondent had previously brought an action in Pennsylvania for divorce, alleging mental cruelty, which was dismissed. We need not decide these issues, because the judgment of divorce must be affirmed on the basis of I.C. § 32-610. The pleadings did raise the § 32-610 ground, though relief was not specifically requested on that basis. As we have noted, the parties did litigate the facts necessary to the establishment of the § 32-610 ground for divorce, and the court made the appropriate findings. This Court will affirm the judgment below if it may be done on any theory supported by competent evidence. ³ The issue of the parties having lived separate for five years without cohabitation was raised in the pleadings, was litigated, and the trial court found the respondent's allegations as to this issue true.

The finding that the parties had not cohabited or lived together for a period of five years is sufficient to sustain the award of the divorce to respondent. The § 32-610 ground for divorce is based upon a public policy established by the legislature, that marriages are dissolvable upon application by either party, and proof of living separate without cohabitation for five years. Fault is immaterial. ⁴ Where the required facts are found by the trial court, the divorce must be granted.

Appellant also assigns as error the finding of the trial court that appellant was not entitled to child support because the child of the parties had reached majority age. It is contended that the law of Pennsylvania controls on the question of majority age, and that under Pennsylvania a child is a minor until that child reaches the age of twenty-one. The age of majority in Idaho is eighteen for females. ⁵ The only evidence presented at trial as to the law of Pennsylvania fixing majority age was the following testimony by appellant on cross-examination:

'Q. Your daughter will be 18 when?

'A. August 25.

'Q. Has she finished high school?

'A. Yes, she graduated in June.

'Q. She becomes of age August 25 this year?

'A. She becomes of age when she is twenty-one.

'Q. Is it twenty-one in Pennsylvania?

'A. I understand it is, yes.

'Q. Did you know its eighteen out here?

'A. No, I did not.'

This testimony does not establish the law of Pennsylvania on the age of majority. It is at best inconclusive testimony by a layman. The rule in Idaho has been that the proponent of the law of a sister state must prove such law, and Idaho courts cannot take judicial notice of a sister state's law. ⁶

That rule was probably well founded at its inception. However, as one authoritative writer in the field of evidence has noted:

'It is easy to see how the difference of languages and inaccessibility of sourcebooks should have led the English courts to develop the common law rule that the laws of foreign nations would not be noticed but must be pleaded and proved as facts. The assumption in the earlier cases in this country that the courts of one state must treat the laws of another state as foreign for this purpose is less understandable and to the afterview seems a deplorable instance of mechanical jurisprudence.

* * *

* * *

'Notice here could certainly be justified on the principle of certainty and verifiability, and the burden on the judge could be minimized by casting the responsibility upon counsel either to agree upon a stipulation as to the law or to produce on each side for the benefit of the court all materials necessary for ascertaining the law in question.' ⁷

The Idaho cases have generally borne out Professor McCormick's characterization that they 'assumed' Idaho courts could not judicially notice laws of another state. In the earliest case, Moore v. Pooley, ⁸ the Court volunteered no supportive reasoning in holding that, in the absence of proof to the contrary, the law of Idaho was presumed to be the same as the law of Montana. The only supportive citation was an encyclopedia of the law of evidence. The next case, Maloney v. Winston, ⁹ held at page 763, 111 P. at page 1088,

'We cannot take judicial notice of the laws of a sister state. In the absence of pleading and proof as to what the laws are in a sister state, we must assume that the same law prevails in the foreign state that prevails here.'

Again, the Court offered no supportive reasoning for this rule, though in this second case a long list of citations of authority from other jurisdictions in support of the rule was given. The Idaho cases affirming this rule that followed Maloney simply cited Maloney and its progency. Thus, has this assumedly necessary rule been carried forward to the present; it is more cumbersome than useful in its broad present day application. We can ascertain on reason why the courts of this state should not be allowed to dispense with the formal requirements of proof, at least as to the statutory law of other states, and instead employ judicial notice, upon the request of the proponent of the other state's law, to determine that law. The Supreme Court of New Hampshire has noted, in itself rejecting the old common law rule against judicial notice of sister states' laws,

'There is no sound legal theory that a judge knows the local law. If knowledge in all cases were assumed, briefs and arguments would be anomalous and inconsistent. When he does not know or have the law in mind, it...