Ziegler v. Ziegler

• Decision Date: 31 January 1985
• Docket Number: No. 14464,14464
• Citation: Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Idaho App. 1985)
• Parties: Mary Ann ZIEGLER, aka Mary Ann Colaluca, Plaintiff-Respondent-Cross Appellant, v. Earl Henry ZIEGLER, Defendant-Appellant-Cross Respondent.
• Court: Idaho Court of Appeals

Page 773

691 P.2d 773

107 Idaho 527

Mary Ann ZIEGLER, aka Mary Ann Colaluca, Plaintiff-Respondent-Cross Appellant, v.Earl Henry ZIEGLER, Defendant-Appellant-Cross Respondent.

No. 14464.

Court of Appeals of Idaho.

Jan. 31, 1985.

Earl Henry Ziegler, Spokane, Wash., pro se.

James R. Michaud, Coeur d'Alene, for plaintiff-respondent-cross appellant.

ON DENIAL OF PETITIONS FOR REHEARING.

This opinion supersedes our prior opinion issued September 4, 1984, which is hereby withdrawn.

PER CURIAM.

This case is before us on appeal and cross-appeal in a divorce action.The divorce proceeding was heard by a magistrate.Both parties appealed from the magistrate's judgment to the district court.On that appeal, the husband sought review of (a) the magistrate's finding that conduct of the husband toward the wife constituted extreme cruelty; (b) the magistrate's award of custody of the minor children to the wife; (c) the magistrate's award of alimony to the wife; (d) the magistrate's conclusion that the community was entitled to reimbursement for improvements to the husband's separate real property; and (e) an award to the wife of personal property which had been repossessed during trial.The wife cross-appealed to the district court, challenging the authority of the magistrate to limit the residency of the parties' children to an area within a radius of 100 miles of Coeur d'Alene, Idaho and ordering that the children not be taken from that area without prior permission from the court.The wife also petitioned for review of an order of the magistrate holding her in contempt of court for removing the children to Georgia without permission from the court.

In its appellate capacity, the district court affirmed the magistrate's judgment and the contempt order.The district court also determined, within its original jurisdiction, four motions filed by the parties during the pendency of the appeal.These were (a) the husband's motions (1) to change custody of the children, (2) to terminate the order for payment of alimony, (3) for an order prohibiting issuance of writs of execution to collect accrued alimony and child support payments; and (b) the wife's motion to modify the decree to eliminate the 100 mile residency restriction.The district court entered findings of fact and conclusions of law determining each of these motions.In sum, the court terminated the alimony requirement and entered an order prohibiting any further execution to collect either accrued alimony and child support, or future child support; and the court denied all other motions.After notice of appeal to this Court was filed, the district court entered an additional order modifying the prohibition against collecting child support and accrued alimony.That order allowed the wife to post $300 with the court as "security" in lieu of a fine imposed by the magistrate for contempt of court, in order to obtain writs of execution "to collect any amounts of child support or alimony now in arrears and unpaid or any amounts of child support that may hereafter in the future become unpaid" without further order of the court.¹Both parties further appeal, seeking review of some of the district court's dispositions.We affirm the district court in all respects, except as to the magistrate's order holding the wife in contempt of court.We vacate that contempt order.

Our standard of review is well settled.Where a district court sits as an appellate court for the purpose of reviewing a magistrate's judgment, the district court is required to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and conclusions of law.If these findings are so supported and the conclusions follow therefrom, and if correct legal principles have been applied, then a district court's decision affirming the magistrate's judgment will be upheld on further appeal.Ustick v. Ustick, 104 Idaho 215, 657 P.2d 1083(Ct.App.1983).

In respect to the motions determined by the district court, its findings of fact will not be set aside unless clearly erroneous or not supported by substantial and competent evidence.I.R.C.P. 52(a);Jensen v. Bledsoe, 100 Idaho 84, 593 P.2d 988(1979).If the district court's findings are supported by the evidence then we will determine whether the district court's conclusions of law follow from the facts and if correct legal principles were applied.

We will now discuss, in turn, each of the parties' contentions on this appeal.We begin with the issues raised by the husband on appeal from the district court's affirmance of the magistrate's judgment and decree of divorce.

I

a. Custody of the children.

At the conclusion of the divorce proceeding, the magistrate entered detailed findings of fact concerning the relative suitability of each party to be a custodian of the children.The magistrate concluded that the wife was the more suitable and awarded custody of the children to her, subject to specified visitation rights in the husband.We have reviewed the record presented to the magistrate.The magistrate's findings are supported by substantial, competent evidence.

In awarding custody, the court is required to provide for the custody of children as may seem necessary or proper in the best interests of the children.I.C. § 32-717;Schmitt v. Schmitt, 83 Idaho 300, 362 P.2d 884(1961).The care, custody and education of minor children is committed to the discretion of the trial court, and, unless there is an abuse of such discretion, the judgment of the court relative thereto will not be disturbed.Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323(1948).

The husband argues that the decision of the magistrate to award custody of the children to the wife was "gender based."He submits statistics showing that in the vast majority of cases, custody of minor children are awarded to mothers, not fathers.He also suggests that "the constitutional rights of [the] children regarding access to both parents" have been overlooked.

However, there is no indication in the record that the magistrate awarded custody to the wife, in this case, on the basis of gender.The magistrate's findings, based on evidence presented at trial, demonstrate that the magistrate thoroughly considered the relationships of both parents to their children and the care that each parent has been and will be able to provide for the children.We are not persuaded that the magistrate made his decision based on gender.Rather, the court stayed within the guidelines of I.C. § 32-717.Moreover, as explained more fully below, the magistrate endeavored to maximize the children's access to both parents by ordering the custodial spouse not to move from the Coeur d'Alene area without court authorization.The determination of custody by the magistrate, based upon substantial evidence and application of proper legal principles, will not be disturbed.The husband also suggests that an attorney should have been appointed to protect the interests of the children.We do not find in this record, however, where any application was made to secure appointment of an attorney for the children nor does the record indicate that the court should have done so sua sponte.We hold no error occurred in this regard.

b. Property award.

The husband next urges that the magistrate erred in determining there was a community interest in the family home.The magistrate found that the home was the separate property of the husband, having been acquired through a loan obtained on the separate credit of the husband which loan was paid for largely with the husband's separate funds.The trial court also found that community funds had been expended for improvements which enhanced the value of the home.The court concluded that although the property was the husband's separate property it was

subject to a right of reimbursement in the community in the sum of $11,268 for the community contribution to the enhanced value due to improvements and the sum of $692.00 for the community contribution toward reduction of the principle [sic] balance of the obligation against the property, for a total community reimbursement of $11,960.00.[Blank completed in original.]

The magistrate's findings and conclusions were upheld by the district court.We also affirm.

The evidence shows the home had a value of $31,250 when it was acquired.It had a value of $50,000 at the time of the divorce.The magistrate found, on the evidence presented at trial, that the increase in value was due in part ($7,482) to inflation and in part ($11,268) to community labor and funds.The magistrate further found that $692 of community earnings had been used to make payments on the principal of the loan upon the house.After reviewing statutory and case law relating to separate and community property, in the context of the facts of this case, the magistrate applied a rule stated in Suter v. Suter, 97 Idaho 461, 465, 546 P.2d 1169, 1173(1976):

[W]hen community efforts, labor, industry, or funds enhance the value of separate property, such enhancement is community property for which the community is entitled to reimbursement.

We uphold the magistrate's judgment that the community is entitled to reimbursement for the enhanced value of the husband's separate property resulting from community labor or expenditure of community funds.

c. Alimony.

The husband contends the magistrate erred in awarding alimony to the wife.He attacks this determination in two respects.First, he contends the former Idaho statute(in effect at the time the alimony award was made in this case), allowing an award of alimony in favor of the wife, is unconstitutional as gender discrimination, citing Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306(1979).Second, he maintains it was improper to award alimony where his sole income, at the time of the divorce, was military retirement pay.In this regard he cites McCarty v. McCarty, 453 U.S. 210, 101...