Child Support.

Divorce decree awarding support payments for minor male children until age 21 held invalid after the amendment of this section by S.L. 1972, ch. 117, § 1, p. 233 which lowered the age of majority for males to eighteen years. Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314 (1974).

Constitutionality.

Prior to the 1972 amendment, this section provided different ages of majority for men and women, which was a violation of the equal protection clause of the Fourteenth Amendment. Harrigfeld v. District Court of Seventh Judicial Dist., 95 Idaho 540, 511 P.2d 822 (1973).

Life Insurance.

As the discrimination between males and females under this section concerning the age at which they reach majority has been held unconstitutional and males reach their majority at 18, when deceased became an insured under a group life insurance policy at the age of 18 he was not a minor and was competent to designate defendant as beneficiary under the policy. Aue v. Ericks, 96 Idaho 13, 523 P.2d 830 (1974).

Construction.

This section and§ 5-310 purport to deal with different subject matters and attempt to protect different interests. They are not statutes in pari materia and hence§ 5-310 does not incorporate within its terms the definition of “person” contained in this section. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

Prenatal Injuries.

A cause of action will lie on behalf of a viable child who sustains prenatal injuries, but is subsequently born alive, if at the time of injury the fetus was viable. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

Cross References.

Minor may make marriage settlement,§ 32-920.

Minor’s power to make contracts and incur obligations under G.I. bill of rights,§ 65-509.

Effective Dates.

Section 3 of S.L. 1972, ch. 117 provided the act should take effect on and after July 1, 1972.

Claim and Delivery.

Plea of infancy is no defense in action for claim and delivery, where infant’s right to possession is contingent on compliance with contract under which he came into possession. Commercial Credit Co. v. Mizer, 50 Idaho 388, 296 P. 580 (1931).

Employment of Minor.

Employment of minor though in violation of the child labor law was not void, but created the relationship of employer and employee under the workmen’s compensation act pursuant to provisions of former§ 72-1011 (now see§ 72-102). Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473 (1930).

Offer to Return.

Capacity of a minor to contract is not absolute, being voidable upon his restoring, or offering to restore, the consideration. Loomis v. Imperial Motors, Inc., 88 Idaho 74, 396 P.2d 467 (1964) (Decision prior to 1972 amendment). Where an unmarried minor over the age of 18 purchased an automobile for cash, disaffirmed the contract and offered the return of the automobile, refusal of the offer to return voided the contract ab initio. Loomis v. Imperial Motors, Inc., 88 Idaho 74, 396 P.2d 467 (1964) (Decision prior to 1972 amendment).

In an action by a minor over eighteen years of age to disaffirm a contract for the repair of a motor bike engine and recover $180 paid to repairman, where the defendant had purchased new parts and performed labor and the plaintiff offered to return the parts but made no offer to pay the reasonable value of the labor, plaintiff could not recover without proof of the reasonable value of the labor. Clark v. Stites, 89 Idaho 191, 404 P.2d 339 (1965) (Decision prior to 1972 amendment).

Voidability.

General rule of voidability of contracts of minors does not apply if contract is for a necessity, or if contract is one authorized by statute. Lakey v. Caldwell, 72 Idaho 52, 237 P.2d 610 (1951).

Contracts of minors are not void, though subject to disaffirmance. Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473 (1930).

Cross References.

Minor not competent to serve as personal representative,§ 15-3-203.

General Rule.

General rule of voidability of contracts of minors does not apply if contract is for a necessity. Lakey v. Caldwell, 72 Idaho 52, 237 P.2d 610 (1951).

Cross References.

Marriage settlements, capacity of minors to make,§ 32-920.

Minor’s power to make contracts and incur obligations under G.I. bill of rights,§ 65-509.

Cross References.

Guardians of incapacitated persons,§ 15-5-301 et seq.

Amendments.

The 2010 amendment, by ch. 235, substituted “persons without understanding” for “idiots” in the section heading.

Cross References.

Guardians of incapacitated persons,§ 15-5-301 et seq.

Contracts of Partially Insane Persons.

Where it is made to appear that a person is insane upon one subject his contracts in regard to other matters will be scrutinized closely by court when their validity and his competency to make them are questioned. Ratliff v. Baltzer’s Adm’r, 13 Idaho 152, 89 P. 71 (1907).

Effect of Adjudication.

Comparing§ 32-108 and this section, it is evident that the legislature intended that contracts involving persons not adjudicated to be incapacitated are to be voidable and that a person adjudicated to be incompetent is without the legal capacity to contract, until that person has been restored to reason. Rogers v. Household Life Ins. Co., 150 Idaho 735, 250 P.3d 786 (2011).

Effect of Adjudication.

Comparing§ 32-107 and this section, it is evident that the legislature intended that contracts involving persons not adjudicated to be incapacitated are to be voidable and that a person adjudicated to be incompetent is without the legal capacity to contract, until that person has been restored to reason. Rogers v. Household Life Ins. Co., 150 Idaho 735, 250 P.3d 786 (2011).

Effect of Commitment.

A commitment upon a preliminary or summary hearing is not a conclusive determination of incapacity within the meaning of this section. Fleming v. Bithell, 56 Idaho 261, 52 P.2d 1099 (1935).

Effect on Power of District Court.

This section does not oust the jurisdiction of the district court to determine whether a party to a contract was competent to contract at the time contract was made, where the validity of the contract is attacked on that ground; the issue of incompetency is merely incidental to the main issue. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

Evidence Admissible.

Feeble-Minded Persons.

Regardless of whether an action is one to quiet title and for declaratory judgment, capacity of parties to contract may be determined by the district court, and the class of proof admissible in such cases is governed by the legal status of the party whose competency is in question, that is, whether he has been committed or declared incompetent, and, if so, whether by summary proceeding or by regular adjudication of insanity. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937). Feeble-Minded Persons.

Contract made by person of defective mind but not entirely without understanding, who comprehends the full force and effect of such contract and upon whom no fraud or deception has been practiced, will not be rescinded. Ratliff v. Baltzer’s Adm’r, 13 Idaho 152, 89 P. 71 (1907).

Restoration to Capacity.

This section is to be read in connection with the two preceding ones, and when so read, it is apparent that, when person has been judicially determined insane, his incapacity to contract has been judicially determined; and words “restoration to capacity,” except as to provision making physician’s certificate prima facie evidence of legal capacity, means judicial restoration to capacity. Miles v. Johanson, 40 Idaho 782, 238 P. 291 (1925).

Cross References.

Annulment of marriage,§ 32-501 et seq.

Domestic violence project grants,§ 39-5201 et seq.

Husband and wife — property,§ 32-901 et seq.

Legislative Intent.

Section 1 of S.L. 1995, ch. 104 read: “It is the intent of this act to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization and of vital interest to society and the state. Common-law marriages entered into in this state on and after January 1, 1996, will no longer be recognized.”

Effective Dates.

Section 6 of S.L. 1995, ch. 104 provided that the act should be in full force and effect on and after January 1, 1996.

Common-law Marriage.

Where the husband entered into a consent marriage at a time when his first wife was living, the continuance of the second marital relation and assumption of its duties after decree of divorce from his first wife became final amounted to a “consensual marriage” which could be avoided only by death or divorce. Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766 (1942) (decision prior to 1995 amendment).

No common-law marriage existed prior to marriage ceremony, where wife never asserted that she was married to husband prior to marriage, and the parties’ cohabitation between 1980 and 1986 was erratic. McCoy v. McCoy, 125 Idaho 199, 868 P.2d 527 (Ct. App. 1994) (decision prior to 1995 amendment).

A common-law marriage arises where the consent of the parties capable of making it is followed by a mutual assumption of marital rights, duties or obligations. Hamby v. J.R. Simplot Co., 94 Idaho 794, 498 P.2d 1267 (1972) (decision prior to 1995 amendment).

Where the testimony indicated that the parties lived together, assumed marital rights and duties, including the conception and birth of a son, and that they held themselves out as husband and wife, beginning in June, 1967, the trial court’s finding that the marriage relationship began in June, 1970 on the date of the ceremonial marriage was not supported by substantial evidence. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983) (decision prior to 1995 amendment).

Because parties intentionally chose not to obtain a marriage license, their purported marriage violated subsection (1) and summary judgment was properly awarded to defendant in plaintiff’s action for divorce. Dire v. Dire-Blodgett, 140 Idaho 777, 102 P.3d 1096 (2004).

District court properly refused to adopt the parties’ post-trial stipulation to apply divorce law to a petition for an equitable division and distribution of property where the Idaho legislature had abolished common-law marriage for the stated purpose of promoting the stability and best interests of marriage and the family, thereby commanding the court to refrain from enforcing contracts in contravention of clearly declared public policy and from legally recognizing co-habitational relationships in general. Gunderson v. Golden, — Idaho —, 360 P.3d 353 (Ct. App. 2015).

— Status of Wife.

Where a husband entered into consent marriage at a time when the first wife was still living, and continued in such second marital relation, and he and the second wife conducted themselves as husband and wife after the divorce decree from the first wife had become final, and in application for employment, the husband named the second wife as his wife, such second wife was the husband’s “widow” on his death, and entitled to workmen’s compensation. Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766 (1942).

A claimant did not fail to establish her status as employee’s “widow” entitled to workmen’s compensation because consensual marriage was consummated in Montana without recording joint declaration of marriage as required by Montana directory statutes. Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766 (1942). Where appellant never held herself out as a married woman, received public assistance for herself and child, had the electric power billed to herself, obtained credit by executing a promissory note and mortgage in her own name, she did not establish that she was the surviving common-law wife of the decedent and was not entitled to letters of administration. In re Estate of Gholson, 83 Idaho 270, 361 P.2d 791 (1961) (decision prior to 1995 amendment).

Consent.

Even though a marriage was first consented to and consummated by Idaho parties while in Washington, a marriage was shown to be also consented to and consummated in Idaho where the parties freely acknowledged the relationship in Idaho upon their return from Washington. Foster v. Diehl Lumber Co., 77 Idaho 26, 287 P.2d 282 (1955) (decision prior to 1995 amendment).

Consent required by this section must be given when the parties enter into the contractual responsibilities of marriage. In re Estate of Gholson, 83 Idaho 270, 361 P.2d 791 (1961).

A requirement of a specific formal marriage contract would be contrary to allowing consent to be implied from the parties’ act and conduct; thus, evidence of conduct by and between the parties consistent with the existence of a common-law marriage may be probative of consent. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

Consent to enter into a common-law relationship may be implied and established from the circumstances and facts of the parties’ relationship in cohabiting, assuming the rights, duties and obligations of marriage, and holding out of themselves as husband and wife. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

Where persons having the capacity to contract have held themselves out to be husband and wife, and have gained that general reputation in the community, or where they acknowledge that they are husband and wife, a court may be warranted in drawing the inference that at the outset there was then present mutual consent between the parties to assume a marital relationship. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

Although not separately designated elements of the doctrine under the statutory framework, proof of cohabitation of the parties and holding oneself out as being married are two of the best methods for proving that there was consent to the contract in the absence of a writing to that effect and the element of consent found in this section and needed to establish common law marriage may be proven by circumstantial evidence such as cohabitation, reputation, and the manner in which the couple characterize their relationship. Hall v. Becker, 126 Idaho 848, 893 P.2d 211 (1995).

Constitutionality.

Idaho’s laws limiting marriage to opposite-sex couples and prohibiting the recognition of same-sex marriages do not survive any applicable level of constitutional scrutiny and, therefore, violate the Equal Protection and Due Process Clauses of U.S. Const., Amend. XIV, § 1. Latta v. Otter, 19 F. Supp. 3d 1054 (D. Idaho), aff’d, 771 F.3d 496 (9th Cir. 2014), cert. denied, — U.S, — 135 S. Ct. 2931, 192 L. Ed. 2d 975 (2015).

Estoppel to Deny Marriage.

Plaintiff, who entered into ceremonial marriages on two occasions with defendant, and who later returned to defendant and lived with defendant in common-law relationship following unsuccessful marriages with two other persons was entitled to a divorce from common-law marriage with defendant where there was no evidence that third husband had died or had secured a divorce from the plaintiff, as the defendant was estopped by virtue of his acts and conduct from declaring that plaintiff’s marriage with a third husband was a bar to the common-law marriage of plaintiff and defendant. Warner v. Warner, 76 Idaho 399, 283 P.2d 931 (1955) (decision prior to 1995 amendment).

In General.

In contrast with other jurisdictions, Idaho has never viewed the doctrine of common-law marriage with disfavor. Together with a small number of other states, Idaho permits a non-ceremonial marriage to be proven by a preponderance of the evidence. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

There are two forms of marriage authorized in this state. One is a marriage that is solemnized by a person authorized to perform marriages, witnessed, authenticated, with a certificate recorded, as provided by§§ 32-301 through 32-309; the other is a common-law marriage. Freiburghaus v. Freiburghaus, 103 Idaho 679, 651 P.2d 944 (Ct. App. 1982) (decision prior to 1995 amendment).

Presumption Concerning Marriage.

Though there was a legal impediment to prevent a valid marriage, as where there was a former husband or wife living at the time, still a valid marriage will be presumed to have occurred after removal of such impediment by death or divorce, where parties continue their marital duties, rights and obligations. Huff v. Huff, 20 Idaho 450, 118 P. 1080 (1911) (decision prior to 1995 amendment).

Proof of a marriage, regular or irregular, raises a strong presumption of its legality, casting the burden on the party attacking it to show that it is illegal or void. Mauldin v. Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608 (1939) (decision prior to 1995 amendment).

Presumption of marriage from cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. Mauldin v. Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608 (1939) (decision prior to 1995 amendment).

Where the original cohabitation was preceded by a ceremonial marriage which was void because one of the parties was already married, the continuance of the cohabitation after the removal of the impediment by death of the former husband or wife, in connection with circumstances tending to show that the parties regarded their relations as of a matrimonial character, and held themselves out as husband and wife, creates a presumption of marriage, although there is no evidence of another ceremony. Nicholas v. Idaho Power Co., 63 Idaho 675, 125 P.2d 321 (1942) (decision prior to 1995 amendment).

All reasonable presumptions must be indulged in in favor of the regularity and legality of marriage regularly solemnized and the burden of removing such presumption is cast upon the party attacking the validity of the marriage to show by clear, cogent and satisfactory evidence that a legal impediment to such marriage existed at the time of the solemnization thereof. Lea v. Galbraith, 64 Idaho 724, 137 P.2d 320 (1943).

When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of proof, the law raises a strong presumption of its legality, casting the burden of proof upon the party objecting and requiring him in every particular to make plain, against the constant pressure of this presumption, the truth of law and fact that the marriage is illegal and void. Thomey v. Thomey, 67 Idaho 393, 181 P.2d 777 (1947) (decision prior to 1995 amendment). The rule adopted in this jurisdiction is that the law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy — every intendment of the law leans toward matrimony. Thomey v. Thomey, 67 Idaho 393, 181 P.2d 777 (1947) (decision prior to 1995 amendment).

Privileged Communication.

Proof of the existence of a common law marriage allows a common law spouse to assert the privilege of confidential communication between spouses as provided by§ 9-203. Still v. State, 97 Idaho 375, 544 P.2d 1145 (1976) (decision prior to 1995 amendment).

Proof of Marriage.

Proof of marriage by the testimony of one of the parties is sufficient, as the presumption in favor of validity of marriage must be overcome by clear and positive evidence. Mauldin v. Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608 (1939) (decision prior to 1995 amendment).

Statement by deceased to bookkeeper of his employer relative to taking of deductions that he was not married was overcome by his representation in writing to motel keeper that he and claimant were married, and by his introduction of claimant as his wife in public. Foster v. Diehl Lumber Co., 77 Idaho 26, 287 P.2d 282 (1955) (decision prior to 1995 amendment).

Finding by workers’ compensation board that the relationship of the deceased and the claimant was “a marriage per verba de futuro cum copula” was not correct where the record showed that the deceased and the claimant were persons of high moral character who openly and publicly acknowledged that they were husband and wife, and showed a marriage by mutual assumption of marital rights, duties and obligations in full compliance with this section. Foster v. Diehl Lumber Co., 77 Idaho 26, 287 P.2d 282 (1955) (decision prior to 1995 amendment).

Finding of district court that petitioner, alleged common-law wife of deceased had not established a prima facie marriage by consent and consummation, would not be overruled by Supreme Court, where there was competent evidence that petitioner and deceased had only been friends, and their cohabiting furtive. In re Estate of Koshman, 77 Idaho 96, 288 P.2d 652 (1955) (decision prior to 1995 amendment).

The existence of a common-law marriage may be established by evidence that the parties have acquired a uniform and general reputation as husband and wife and may be negated by evidence that the parties held themselves out as single persons. Hamby v. J.R. Simplot Co., 94 Idaho 794, 498 P.2d 1267 (1972) (decision prior to 1995 amendment).

Whereas in most instances, questions as to the existence of a common-law marriage will arise only after death, such a marriage may be proven by the testimony of one of the parties. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

Where it was established that a man and a woman were persons without impediment, who consented to and consummated a marriage by cohabitation and mutual assumption of marital rights, duties or obligations in compliance with this section, a strong presumption of marriage was created which cast the burden of proof upon the contestants to rebut such presumption by clear and positive evidence. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment). Where, in an action between deceased’s common-law wife and his children by his first marriage to determine the beneficiary of a life insurance policy, the continued use by the wife of her former surname for the purpose of continuing to receive her civil service widow pension following the death of her first husband did not negate her consent to enter the subsequent common-law marriage nor render that marriage void. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

To make a prima facie showing of a marriage, the alleged wife’s evidence must have established not only consent, but also mutual assumption of the rights, duties and responsibilities of marriage, by cohabitation and by holding themselves out to the community as husband and wife; only then would the alleged common-law husband have to overcome the presumption of a marriage by providing “clear and positive proof” to the contrary. Freiburghaus v. Freiburghaus, 103 Idaho 679, 651 P.2d 944 (Ct. App. 1982) (decision prior to 1995 amendment).

Where plaintiff seeking divorce from alleged common-law marriage did not show a solemnization of such marriage, and where the parties did not reside together or hold themselves out publicly as being married, the trial judge erred in determining that a marriage existed. Freiburghaus v. Freiburghaus, 103 Idaho 679, 651 P.2d 944 (Ct. App. 1982) (decision prior to 1995 amendment).

While a common-law marriage may be proven by testimony of a party to that relationship, the existence of such a common-law relationship may be negated by evidence that the parties held themselves out as single persons rather than as husband and wife. Graham v. Larry Donohoe Logging, 103 Idaho 824, 654 P.2d 1377 (1982) (decision prior to 1995 amendment).

No prima facie showing of common law marriage existed where woman alleging common law marriage and spousal interest in decedent’s estate and decedent filed separate tax returns, alleged spouse did not change her employment records, alleged spouse and decedent did not commingle funds and were separately responsible for household debts and did not consistently hold themselves out in the community to be married, which, taken together, failed to make proof that she and decedent assumed the rights, duties and obligations of marriage under§§ 32-301, 32-203 and this section. Hall v. Becker, 126 Idaho 848, 893 P.2d 211 (1995).

Residents of Other States.

Under Oregon law, woman was the surviving wife or widow of deceased workman for purposes of receiving death benefits under Longshoremen’s and Harbor Workers’ Act, where they had lived together as husband and wife from 1938 until his death in 1961, although the man’s marriage to another woman was not formally dissolved until 1943; their relationship began in Idaho, which recognized nonceremonial marriages, and each year, following removal to Oregon in 1942, they returned to Idaho with their children to visit their parents, sufficiently confirming their marital relationship. Albina Engine & Mach. Works v. O’Leary, 328 F.2d 877 (9th Cir.), cert. denied, 379 U.S. 817, 85 S. Ct. 35, 13 L. Ed. 2d 29 (1964) (decision prior to 1995 amendment).

A couple who lived together as husband and wife and held themselves out to be such in the state of Oregon, where common-law marriages are not recognized, did not establish a common-law marriage by registering and living as husband and wife on four vacation fishing trips of three to seven days each into Idaho. In re Estate of Hildenbrand, 243 Or. 117, 410 P.2d 244 (1966) (decision prior to 1995 amendment).

Where an unmarried couple residing in Oregon made numerous visits to Idaho for social and business purposes over a 12-year period, their contacts with Idaho were insufficient to constitute the basis of a common-law marriage under this section and§ 32-203. In re Wharton, 55 Or. App. 564, 639 P.2d 652 (1982) (decision prior to 1995 amendment).

Same-Sex Marriages.

Without a marriage amendment to the Idaho Constitution, a couple who seeks to solemnize their relationship in Idaho could bring a lawsuit alleging that Idaho’s marriage statutes violate the due process and equal protection clauses of the Idaho Constitution. A couple that seeks recognition in Idaho of a relationship solemnized in another state could further claim that full faith and credit is due the relationship under the United States Constitution. Although the Idaho Supreme Court would probably reject these challenges under current law, a marriage amendment would bar a challenge under the Idaho Constitution and would strengthen Idaho’s current statement of public policy rejecting same-sex marriages formed in other states.OAG 06-1.

Cross References.

Person officiating to ascertain age,§ 32-302.

Amendments.

The 2020 amendment, by ch. 241, rewrote the section to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 2 of S.L. 1972, ch. 68 provided the act should take effect on and after July 1, 1972.

Constitutionality.

Court enjoined enforcement of any laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit same-sex couples from marrying in Idaho; that relief is broad enough to cover provisions referencing “husband and wife” or the traditional, opposite-sex definition of marriage. Latta v. Otter, 19 F. Supp. 3d 1054 (D. Idaho), aff’d, 771 F.3d 496 (9th Cir. 2014), cert. denied, — U.S, — 135 S. Ct. 2931, 192 L. Ed. 2d 975 (2015).

ALR.

Marriage between persons of the same sex. 81 A.L.R.5th 1.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination. 82 A.L.R.5th 1.

Compiler’s Notes.

This section, which comprised 1877, p. 25, § 3; R.S., § 2422; reen. R.C. & C.L., § 2613; C.S., § 4593; I.C.A.,§ 31-203, was repealed by S.L. 1995, ch. 104, § 2, effective January 1, 1996.

Compiler’s Notes.

This section, which comprised 1877, p. 24, § 4; R.S., § 2423; reen. R.C. & C.L., § 2614; C.S., § 4594; I.C.A.,§ 31-204, was repealed by S.L. 1995, ch. 104, § 2, effective January 1, 1996.

Cross References.

Penalty for incest,§ 18-6602.

Construction.

Definition herein contained applies to§ 18-6602, prescribing penalty for incest. State v. Andrus, 29 Idaho 1, 156 P. 421 (1916).

Cross References.

Annulment of marriage,§ 32-501 et seq.

Penalty for bigamy,§ 18-1103.

Allegations.

Complaint must allege, in order to state an offense under the laws of this state, that the other party charged to have contracted a subsequent marriage is not the former husband or wife of divorced person so subsequently married. State v. Cole, 31 Idaho 603, 174 P. 131 (1918).

Collateral Attack.

Where widow of deceased obtained a divorce decree in state against a former husband, brothers and sisters of deceased who were neither parties to nor in privity with any of the parties to the divorce action had no standing to attack collaterally such decree. Bair v. Bair, 91 Idaho 30, 415 P.2d 673 (1966).

Presumption of Marriage.

Where the original cohabitation was preceded by a ceremonial marriage which was void because one of the parties was already married, the continuance of the cohabitation after the removal of the impediment by death of the former husband or wife, in connection with circumstances tending to show that the parties regarded their relations as of a matrimonial character, and held themselves out as husband and wife, creates a presumption of marriage, although there is no evidence of another ceremony. Nicholas v. Idaho Power Co., 63 Idaho 675, 125 P.2d 321 (1942). Where husband married his first wife in China in 1915 and his second wife in California in 1937, evidence that divorce is uncommon in China and that plural marriages are acceptable under Chinese law was not sufficient to overcome the presumptions that the second marriage was valid and that the prior marriage had been terminated. Estate of Yee, 98 Idaho 147, 559 P.2d 763 (1977).

ALR.

§ 32-208. Release from contract for unchastity.

Neither party to a contract to marry is bound by a promise made in ignorance of the other’s want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other, unless both parties participate therein.

History.

R.S., § 2427; reen R.C. & C.L., § 2618; C.S., § 4598; I.C.A.,§ 31-208.

Effective Dates.

Section 2 of S.L. 1996, ch. 331 declared an emergency. Approved March 18, 1996.

Constitutionality.

Idaho’s laws limiting marriage to opposite-sex couples and prohibiting the recognition of same-sex marriages do not survive any applicable level of constitutional scrutiny and, therefore, violate the Equal Protection and Due Process Clauses of U.S. Const., Amend. XIV, § 1. Latta v. Otter, 19 F. Supp. 3d 1054 (D. Idaho), aff’d, 771 F.3d 496 (9th Cir. 2014), cert. denied, — U.S, — 135 S. Ct. 2931, 192 L. Ed. 2d 975 (2015).

Foreign Law, Compliance.

A claimant did not fail to establish her status as an employee’s “widow” entitled to workmen’s compensation because consensual marriage was consummated in Montana without recording joint declaration of marriage as required by Montana directory statutes. Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766 (1942).

Judicial Determination of Validity.

Marriage Void Where Consummated.

Where courts of the state of Utah found that marriage consummated in that state was valid, such decree was binding on the courts of Idaho. Hilton v. Stewart, 15 Idaho 150, 96 P. 579 (1908). Marriage Void Where Consummated.

When marriage consummated in Indiana was void by reason of prior undissolved marriage, such marriage was void in Idaho. Huff v. Huff, 20 Idaho 450, 118 P. 1080 (1911).

Same-Sex Marriages.

Without a marriage amendment to the Idaho Constitution, a couple who seeks to solemnize their relationship in Idaho could bring a lawsuit alleging that Idaho’s marriage statutes violate the due process and equal protection clauses of the Idaho Constitution. A couple that seeks recognition in Idaho of a relationship solemnized in another state could further claim that full faith and credit is due the relationship under the United States Constitution. Although the Idaho supreme court would probably reject these challenges under current law, a marriage amendment would bar a challenge under the Idaho Constitution and would strengthen Idaho’s current statement of public policy rejecting same-sex marriages formed in other states.OAG 06-1.

ALR.

Cross References.

Registration of marriages,§ 39-262.

Legislative Intent.

Section 1 of S.L. 1995, ch. 111 read: “It is the intent of this act to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization and of vital interest to society and the state. Common-law marriages entered into in this state on and after January 1, 1996, will no longer be recognized.”

Common law Marriages.

Common-law marriage recognized in Idaho, Dawson v. United States, 10 F.2d 106 (9th Cir.), cert. denied, 271 U.S. 687, 46 S. Ct. 638, 70 L. Ed. 1152 (1926) (decision prior to 1995 amendment).

Where, after death of former spouse, a couple recognize their union as husband and wife and enter upon the marriage relation and children are born to them thereafter, such relationship develops into a common-law marriage. Huff v. Huff, 20 Idaho 450, 118 P. 1080 (1911) (decision prior to 1995 amendment).

In contrast with other jurisdictions, Idaho has never viewed the doctrine of common-law marriage with disfavor. Together with a small number of other states, Idaho permits a non-ceremonial marriage to be proven by a preponderance of the evidence. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

A desire for a ceremonial marriage does not necessarily preclude the existence of a common-law marriage. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment). Where the testimony indicated that the parties lived together, assumed marital rights and duties, including the conception and birth of a son, and that they held themselves out as husband and wife, beginning in June, 1967, the trial court’s finding that the marriage relationship began in June, 1970 on the date of the ceremonial marriage was not supported by substantial evidence. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983) (decision prior to 1995 amendment).

No prima facie showing of common law marriage existed where woman alleging common law marriage and spousal interest in decedent’s estate and decedent filed separate tax returns, alleged spouse did not change her employment records, alleged spouse and decedent did not commingle funds and were separately responsible for household debts and did not consistently hold themselves out in the community to be married, which, taken together, failed to show that she and decedent assumed the rights, duties and obligations of marriage under§§ 32-201, 32-203, and this section. Hall v. Becker, 126 Idaho 848, 893 P.2d 211 (1995).

In General.

There are two forms of marriage authorized in this state. One is a marriage that is solemnized by a person authorized to perform marriages, witnessed, authenticated, with a certificate recorded, as provided by§§ 32-301 through 32-309; the other is a common-law marriage. Freiburghaus v. Freiburghaus, 103 Idaho 679, 651 P.2d 944 (Ct. App. 1982) (decision prior to 1995 amendment).

Nonresidents.

A couple who lived together as husband and wife and held themselves out to be such in the state of Oregon, where common-law marriages are not recognized, did not establish a common-law marriage by registering and living as husband and wife on four vacation fishing trips of three to seven days each into Idaho. In re Estate of Hildenbrand, 243 Or. 117, 410 P.2d 244 (1996) (decision prior to 1995 amendment).

Presumption of Marriage.

Where there was clear evidence of cohabitation, of assumption of the rights, duties and responsibilities of marriage and that the partners held themselves out to the community as husband and wife, the presumption of marriage was established, including the element of consent. Metropolitan Life Ins. Co. v. Johnson, 103 Idaho 122, 645 P.2d 356 (1982) (decision prior to 1995 amendment).

ALR.

§ 32-302. Duty of person officiating.

All persons herein authorized to solemnize marriages must first require the presentation of the marriage license and must ascertain and be assured of:

1. The identity of the parties.
2. Their real and full names and places of residence.
3. That they are of sufficient age to be capable of contracting marriage.
4. If either the male or the female is under the age of eighteen (18), the consent of the father, mother or guardian, if any such, is given, or that such underaged person has been previously but is not at the time married; and that the parties applying for the rites of marriage, and making such contract, have a legal right so to do.

History.

1876, p. 24, § 9; R.S., § 2430; am. 1888-1889, p. 44; reen. R.C. & C.L., § 2621; C.S., § 4601; I.C.A.,§ 31-302; am. 1995, ch. 104, § 5, p. 334.

Cross References.

Nonage, consent of parent or guardian to issuance of license,§ 32-202.

Effective Dates.

Section 6 of S.L. 1995, ch. 104 provided that the act should be in full force and effect on and after January 1, 1996.

Requirements.

Because parties intentionally chose not to obtain a marriage license, their purported marriage violated state law, and summary judgment was properly awarded to defendant in plaintiff’s action for divorce as a license and solemnization are required for a valid marriage. Dire v. Dire-Blodgett, 140 Idaho 777, 102 P.3d 1096 (2004).

A.L.R.

§ 32-303. By whom solemnized.

Marriage may be solemnized by any of the following Idaho officials: a current or retired justice of the supreme court, a current or retired court of appeals judge, a current or retired district judge, the current or a former governor, the current lieutenant governor, a current or retired magistrate of the district court, a current mayor or by any of the following: a current federal judge, a current tribal judge of an Idaho Indian tribe or other tribal official approved by an official act of an Idaho Indian tribe or priest or minister of the gospel of any denomination. To be a retired justice of the supreme court, court of appeals judge, district judge or magistrate judge of the district court, for the purpose of solemnizing marriages, a person shall have served in one (1) of those offices and shall be receiving a retirement benefit from either the judges retirement system or the public employee retirement system for service in the Idaho judiciary.

History.

1863, p. 613, § 4; R.S., § 2431; reen. R.C. & C.L., § 2622; C.S., § 4602; I.C.A.,§ 31-303; am. 1969, ch. 116, § 1, p. 374; am. 1983, ch. 18, § 3, p. 52; am. 1994, ch. 7, § 1, p. 11; am. 1997, ch. 196, § 1, p. 554; am. 2000, ch. 212, § 1, p. 572; am. 2008, ch. 46, § 1, p. 119.

Cross References.

Judges’ retirement and compensation,§ 1-2001 et seq.

Public employee retirement system,§ 59-1301 et seq.

Amendments.

The 2008 amendment, by ch. 46, in the first sentence, substituted “any of the following Idaho officials” for “either,” deleted “any federal judge” following “district judge,” inserted “the current” preceding “lieutenant governor” and “a current” preceding “mayor” and inserted “or by any of the following: a current federal judge, a current tribal judge of an Idaho Indian tribe or other tribal official approved by an official act of an Idaho Indian tribe or”; and in the last sentence, inserted “Idaho” near the end.

Effective Dates.

Section 2 of S.L. 1969, ch. 116 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Section 2 of S.L. 1997, ch. 196 declared an emergency. Approved March 19, 1997.

ALR.

§ 32-304. Form of ceremony.

No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage that they take each other as husband and wife.

History.

1863, p. 614, § 6; R.S., § 2432; reen. R.C. & C.L., § 2623; C.S., § 4603; I.C.A.,§ 31-304.

Constitutionality.

Court enjoined enforcement of any laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit same-sex couples from marrying in Idaho; that relief is broad enough to cover provisions referencing “husband and wife” or the traditional, opposite-sex definition of marriage. Latta v. Otter, 19 F. Supp. 3d 1054 (D. Idaho), aff’d, 771 F.3d 496 (9th Cir. 2014), cert. denied, — U.S, — 135 S. Ct. 2931, 192 L. Ed. 2d 975 (2015).

Cross References.

Persons who may marry,§ 32-202.

Cross References.

Fee of recorder for issuing, filing, recording and indexing certificate of marriage,§ 31-3205.

Disposition of Fees and Gratuities.

Fees received by probate judge for solemnizing marriages must be turned into county treasury, but any gratuities given him by the parties over and above amount of the legal fee may be retained for his individual use. Rhea v. Board of County Comm’rs, 12 Idaho 455, 88 P. 89 (1907); Rhea v. Board of County Comm’rs, 13 Idaho 59, 88 P. 89 (1907).

ALR.

§ 32-309. Marriage certificate as evidence.

The original certificate, and record of marriage made by the judge, justice or minister, as prescribed in this chapter, and the record thereof by the recorder of the county, or a copy of such record duly certified by such recorder, must be received in all courts and places as presumptive evidence of the fact of such marriage.

History.

1863, p. 615, § 14; R.S., § 2440; am. 1888-1889, p. 40, § 1; am. R.C. & C.L., § 2628; C.S. § 4608; I.C.A.,§ 31-309.

Cross References.

Marriage books and certified copies of entries as evidence,§ 32-409.

Compiler’s Notes.

These sections, which comprised S.L. 1947, ch. 94, §§ 4, 5, were repealed by S.L. 1949, ch. 72, § 34.

Cross References.

Certificates of marriage and marriage contracts to be recorded by county recorder,§ 31-2402; index,§ 31-2404.

Certificate of marriage, forwarded to state registrar by recorder,§ 39-262.

Amendments.

The 2012 amendment, by ch. 20, deleted “of Christians, Hebrews” following “church or denomination” and deleted “or justice of the peace” preceding “or competent office” in the first paragraph of the form.

Cross References.

Certificate presumptive evidence of marriage,§ 32-309.

Fee of county recorder for filing, recording and indexing certificate of marriage,§ 31-3205.

Amendments.

The 2012 amendment, by ch. 20, deleted “justice of the peace or other” preceding “court having jurisdiction” near the end of the last paragraph.

Effective Dates.

Section 2 of S.L. 1982, ch. 356 declared an emergency. Approved April 2, 1982.

Section 2 of S.L. 1972, ch. 49 provided the act should take effect on and after July 1, 1972. Section 3 of S.L. 1999, ch. 334 declared an emergency. Approved March 24, 1999.

Purpose of Statute.

The purpose of this statute is to guard against collusion between the parties to have the marriage contract dissolved. Bess v. Bess, 58 Idaho 259, 72 P.2d 285 (1937).

Cross References.

Punishment for perjury,§ 18-5409.

Perjury.

Information charging defendant with perjury in connection with his application for a marriage license was fatally defective and properly dismissed, because it failed to name officer before whom oath was taken and did not allege authority of officer to administer the oath as required by§ 19-1426, and did not allege that false statement was made in written affidavit sworn to before the county recorder as required by this section. State v. Thomas, 82 Idaho 473, 355 P.2d 674 (1960).

ALR.

§ 32-406. Solemnization without license — Penalty.

If any such minister or officer shall presume to solemnize any marriage between parties without such a license, or with knowledge that either party is legally incompetent to contract matrimony as is provided for by the laws of this state, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00) nor more than $200.00 before any court having jurisdiction.

History.

1895, p. 166, § 6; reen. 1899, p. 278, § 6; reen. R.C. & C.L., § 2634; C.S., § 4614; I.C.A.,§ 31-406.

Cross References.

State registrar, forward of license to by recorder,§ 39-262.

Cross References.

Fee of county recorder for issuing marriage license,§ 31-3205.

Cross References.

Marriage certificate presumptive evidence,§ 32-309.

Compiler’s Notes.

The disposition of fines provided in this section is superseded by§ 19-4705, effective January 11, 1971, which provides, in part, that “Other existing laws regarding the disposition of fines and forfeitures are hereby repealed to the extent such law is inconsistent with the provisions of this act except as provided in section 49-1013(3).”

Compiler’s Notes.

Section 2 of S.L. 1980, ch. 119 as amended by § 2 of S.L. 1985, ch. 51 read: “Section 34-412, Idaho Code, shall become null and void after June 30, 1988, unless reenacted by the Idaho legislature.”

Prior Laws.

Former§ 32-412A, which comprised I.C.,§ 32-412A, as added by 1978, ch. 63, § 1, was repealed by S.L. 1979, ch. 57, § 1.

Compiler’s Notes.

This section, which comprised, 1943, ch. 42, § 2, p. 83; am. 1979, ch. 57, § 3, p. 150, was repealed by S.L. 2009, ch. 11, § 7.

Prior Laws.

Former§ 32-414 which comprised S.L. 1943, ch. 42, § 3, p. 83; am. 1970, ch. 25, § 1, p. 52, was repealed by S.L. 1979, ch. 57, § 1.

Compiler’s Notes.

This section, which comprised 1943, ch. 42, § 5, p. 83; am. 1969, ch. 90, § 2, p. 302; am. 1979, ch. 57, § 4, p. 150, was repealed by S.L. 2000, ch. 71, § 1, effective July 1, 2000.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Former§ 32-415 which comprised S.L. 1943, ch. 42, § 4, p. 83, was repealed by S.L. 1979, ch. 57, § 1.

Compiler’s Notes.

This section was formerly compiled as§ 32-417.

The term “this act” in this section refers to S.L. 1943, Chapter 42, which is codified only in this section.

Compiler’s Notes.

Former§§ 32-416 and 32-417 were amended and redesignated as§§ 32-414 and 32-415, pursuant to S.L. 1979, ch. 57, §§ 4 and 5.

Compiler’s Notes.

These sections, which comprised S.L. 1947, ch. 94, §§ 6 and 8, were repealed by S.L. 1949, ch. 72, § 34.

Cross References.

First cousins, marriage between prohibited,§ 32-206.

Grounds for divorce,§ 32-603 et seq.

Incestuous marriages void,§ 32-205.

Polygamous marriages illegal and void, exception,§ 32-207.

Who may marry, age limits,§ 32-202.

Consent of Parents.

The requirement of written and acknowledged consent has been held in cases considering similar statutes to be applicable only to the issuance of the license, and simply directory to the officer who issues the license, and the lack of such written and acknowledged consent does not affect the validity of the marriage. Cross v. Cross, 110 Mont. 300, 102 P.2d 829 (1940).

In a suit by a mother in the courts of Montana to annul an Idaho marriage of her son on the ground that he was not of statutory age when married, conflicting evidence supported a finding that the mother actually consented to the subsequent marriage of her son. Cross v. Cross, 110 Mont. 300, 102 P.2d 829 (1940). A parent’s verbal consent to marriage by a minor child will prevent obtaining an annulment thereafter. Cross v. Cross, 110 Mont. 300, 102 P.2d 829 (1940).

Impotency.

In a divorce suit in which the wife counterclaimed for annulment on grounds of the husband’s impotency, but there was no evidence that the alleged incapacity of the husband continued or that such incapacity was incurable, the trial court properly dismissed the counterclaim. Ferguson v. Ferguson, 91 Idaho 33, 415 P.2d 676 (1966).

Social Security Benefits.

If 16-year-old daughter marries without consent of mother, payment of social security benefits to mother and daughter, which terminated on date of marriage, was subject to reinstatement effective on date of decree annulling marriage. Mays v. Folsom, 143 F. Supp. 784 (D. Idaho 1956).

ALR.

Concealment or misrepresentation relating to religion as ground for annulment. 44 A.L.R.3d 972.

What constitutes mistake in the identity of one of the parties to warrant annulment of marriage. 50 A.L.R.3d 1295.

Incapacity for sexual intercourse as ground for annulment. 52 A.L.R.3d 589.

Spouse’s secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment. 66 A.L.R.3d 1282.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Social Security Benefits.

If 16-year-old daughter marries without consent of mother, payment of social security benefits to mother and daughter, which terminated on date of marriage, was subject to reinstatement effective on date of decree annulling marriage. Mays v. Folsom, 143 F. Supp. 784 (D. Idaho 1956).

Cross References.

Intestate succession, illegitimate children,§ 15-2-109.

Compiler’s Notes.

The bracketed insertion near the end of the first sentence was added by the compiler to supply the probable intended term.

Effective Dates.

Section 2 of S.L. 1955, ch. 261 declared an emergency. Approved March 16, 1955.

ALR.

Effect in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody made incident thereto. 78 A.L.R.3d 846.

Cross References.

Divorce, custody of children pending or upon,§ 32-717.

Separation without divorce, custody of children,§ 32-1005.

ALR.

§ 32-505. Conclusiveness of judgment.

A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.

History.

R.S., § 2454; reen. R.C. & C.L., § 2644; C.S., § 4624; I.C.A.,§ 31-505.

Legislative Powers.

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. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Section Does Not Limit New Actions.

The statute which provides that a judgment of nullity of a marriage rendered is conclusive only as against the parties thereto or claiming under them, could not be invoked to prevent a wife of a deceased first husband from obtaining benefit rights after a second marriage was annulled because the second husband had an undivorced wife at the time of marriage. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Compiler’s Notes.

This section, which comprised S.L. 1947, ch. 94, § 7, was repealed by S.L. 1949, ch. 72, § 34.

Cross References.

Domestic violence project grants,§ 39-5201 et seq.

Burden of Proof.

One who asserts the invalidity of a marriage must assume the burden of proof of such invalidity by clear and convincing evidence. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Divorce from Bed and Board.

Idaho does not recognize the right to divorce from bed and board. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

Interlocutory Judgments.

The divorce laws contain no provision for an interlocutory judgment of divorce. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

An interlocutory judgment of divorce granted by a state court in California was not entitled to due faith and credit by an Idaho court, since Idaho does not recognize interlocutory judgments of divorce. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

Legislative Powers.

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. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Manner of Dissolution.

A marriage can only be dissolved by death of one of the parties or by the judgment of a court of competent jurisdiction. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

Marriage is dissolved only by death of one of the parties or by the judgment of a court of competent jurisdiction declaring a divorce of the parties. Duncan v. Jacobsen Constr. Co., 83 Idaho 254, 360 P.2d 987 (1961).

Separate Property.

In an action by a wife, six years after her divorce, for a redetermination of community property interest in husband’s pension benefits, in which wife was awarded one-half of the pension benefits, valued at the time of actual retirement, that award included increases in pension benefits which accrued after the date of divorce, and hence not acquired during marriage, but during the time the husband was an unmarried person. As such, those increases constituted the separate property of the husband, and, to the extent that an interest in those post-divorce increases was awarded to the wife, it constituted an impermissible invasion of husband’s separate property. Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (1988).

Separation.

A marriage continues, despite a separation, until a decree of divorce. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

In Idaho, the characterization of an asset as community or separate property depends on the date and source of the property’s acquisition. Where divorce proceedings were pending at the time of a husband’s death but a final divorce decree had not been entered, the marital community continued to exist until the husband’s death, and community property principles applied. Banner Life Ins. Co. v. Mark Wallace Dixson Irrevocable Trust, 147 Idaho 117, 206 P.3d 481 (2009).

Summary Judgment.

An uncertified partial summary judgment is not final in a divorce action. Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

Valuation of Community Property.

The magistrate determined the valuation date to be the date of the order granting a partial divorce decree, and, since community property only exists as long as the community exists, once the magistrate issued the divorce and certified it as final, it necessarily follows that the date of valuation should occur on that date. Brinkmeyer v. Brinkmeyer, 135 Idaho 596, 21 P.3d 918 (2001).

Cross References.

Registration of divorce certificate,§ 39-265.

Marriage not polygamous if former marriage annulled or dissolved,§ 32-207.

Divorce from Bed and Board.

Idaho does not recognize the right to divorce from bed and board, but does recognize the right to separate maintenance. Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940).

Effect in General.

The effect of a judgment of divorce is to restore the parties to the estate of unmarried persons. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

Separate Property.

In an action by a wife, six years after her divorce, for a redetermination of community property interest in husband’s pension benefits, in which wife was awarded one-half of the pension benefits, valued at the time of actual retirement, that award included increases in pension benefits which accrued after the date of divorce, and hence not acquired during marriage, but during the time the husband was an unmarried person. As such, those increases constituted the separate property of the husband, and, to the extent that an interest in those post-divorce increases was awarded to the wife, it constituted an impermissible invasion of husband’s separate property. Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (1988).

Validity of Decree.

Use of the word “dissolve” instead of the word “divorced” did not prevent divorce decree from being valid. Finnegan v. Finnegan, 76 Idaho 500, 285 P.2d 488 (1955).

Cross References.

Limitation of actions,§ 32-615.

Separation without cohabitation,§ 32-610.

Compiler’s Notes.

The bracketed insertion in subsection 7 was added by the compiler to conform to the statutory citation style.

Adultery.

Although it was clear that the marriage started to fall apart a few years into it, clear and conclusive evidence of adultery did not exist, and, thus, the magistrate court did not err in its finding that neither party met their burden of proving fault grounds for divorce. Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019).

Grounds for Divorce.

Irreconcilable Differences.

Wife’s criticism and ridicule of husband’s religion constituted a constitutionally protected free exercise of religious belief, however, constitutionally protected acts can create grounds for divorce. Lepel v. Lepel, 93 Idaho 82, 456 P.2d 249 (1969). Irreconcilable Differences.

Since§ 32-616 embodies no fault criterion, the trial court may grant a divorce in favor of spouse though not requested by that spouse if, for “substantial reasons,” the marriage had deteriorated beyond conciliation. Ripatti v. Ripatti, 94 Idaho 581, 494 P.2d 1025 (1972).

Reason for Finding of Fault.

The failure of the magistrate to delineate the specific reason for the finding of fault, as set forth in this section, as the basis for the award of divorce, is not error where the reasons are obvious in the record. Bell v. Bell, 122 Idaho 520, 835 P.2d 1331 (Ct. App. 1992).

Violent Conduct While Intoxicated.

A defendant’s testimony of plaintiff’s violent conduct toward him while under the influence of alcohol and narcotics was sufficient support for the decree of the court granting a divorce to the defendant on his cross-complaint. Johnson v. Johnson, 92 Idaho 365, 442 P.2d 775 (1968).

ALR.

Single act as basis of divorce or separation on ground of cruelty. 7 A.L.R.3d 761.

Fault of spouse as affecting right to divorce under statute making separation a substantial ground of divorce. 14 A.L.R.3d 502.

Retrospective effect of statute prescribing grounds of divorce. 23 A.L.R.3d 626.

Separation within statute making separation a substantive ground for divorce. 35 A.L.R.3d 1238.

Validity, construction and effect of “no-fault” divorce statutes providing for dissolution of marriage upon finding that relationship is no longer viable. 55 A.L.R.3d 581; 86 A.L.R.3d 1116.

Transvestism or transsexualism of spouse as justifying divorce. 82 A.L.R.3d 725.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce. 86 A.L.R.3d 1116.

Homosexuality as ground for divorce. 96 A.L.R.5th 83.

Cross References.

Limitation of actions,§ 32-615.

Penalty for adultery,§ 18-6601.

Pleading.

It is not absolutely necessary to allege name of person with whom adultery was committed. Defendant has opportunity to procure such information by demurrer for uncertainty (now abolished) and no decree can be rendered without evidence of specific act. Rice v. Rice, 46 Idaho 418, 267 P. 1076 (1928).

Proof.

Divorces on the ground of adultery should be granted only upon very clear and conclusive evidence. Brown v. Brown, 27 Idaho 205, 148 P. 45 (1915).

Specific act of adultery must be established by evidence at trial. Rice v. Rice, 46 Idaho 418, 267 P. 1076 (1928).

Counterclaim.

Even if the evidence in a divorce suit had been sufficient to support the wife’s allegations of cruelty, the judgment granting a divorce to the husband on grounds of cruelty and denying the wife’s counterclaim was not reversibly erroneous where the wife wanted the bonds of matrimony dissolved, either by annulment or divorce, and did not interpose her ground for divorce as a recriminatory defense; in the absence of a showing that she was prejudiced the judgment would not be reversed merely because the evidence might support a decree of divorce to both parties. Ferguson v. Ferguson, 91 Idaho 33, 415 P.2d 676 (1966).

Course of Conduct.

Extreme cruelty is a term of relative meaning and a course of conduct that would inflict mental suffering upon one person might not have that effect upon another. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

Trial court’s finding of extreme cruelty on part of wife was sustained by evidence that she was incapable or unwilling to give her husband the love he desired but devoted her attention to other men, indulging in scandalous conduct. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964).

Whether a spouse’s conduct constitutes extreme cruelty is primarily a question of fact to be decided by the magistrate, and the magistrate’s findings will be upheld if they are supported by substantial evidence. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

Discretion of Court.

Effects of Cruelty Determined by Court.

Finding of trial court as to cruelty causing grievous mental suffering will not be disturbed, unless evidence supporting it is so slight that an abuse of discretion is indicated. Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (1919); Morrison v. Morrison, 38 Idaho 45, 221 P. 156 (1923). Effects of Cruelty Determined by Court.

The determination of the effects of cruelty is largely committed to the trial court. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

Excusable Cruelty.

Where cruelty is alleged to have consisted in the wife’s hostile demonstrations and lecturing, nagging, and hectoring husband and evidence discloses that he has been so indiscreet in his conduct toward others as to arouse suspicion on part of his wife, conduct of the wife in her protests and outbursts of feeling will not be viewed with the same severity and rigidity by law as it would be in case where no such apparent provocation existed. Spofford v. Spofford, 18 Idaho 115, 108 P. 1054 (1910).

Party to marital contract who, by his acts and conduct, invites a remonstrance, protest, or demonstration from the other party, must expect to exercise a degree of forbearance which the law and good morals would not expect of him under more favorable circumstances. Boeck v. Boeck, 29 Idaho 639, 161 P. 576 (1916).

In General.

A divorce based on alleged extreme cruelty should not be granted for trifles. Clayton v. Clayton, 81 Idaho 416, 345 P.2d 719 (1959).

Mental Suffering.

Question as to whether acts of cruelty cause grievous mental suffering on part of innocent party is the determining question. Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94 (1917).

Supreme court held that evidence sustained trial court’s action in granting divorce on grounds of extreme mental cruelty. Jordan v. Jordan, 75 Idaho 512, 275 P.2d 669 (1954).

A wife’s continual attraction of and association with other men constituted extreme cruelty to the husband. Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967).

When conduct is alleged to constitute extreme cruelty within this section, it (the conduct) is not to be considered in the abstract; the crucial determination is how the conduct has affected a spouse. Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967).

Sufficiency of Proof.

While the memorandum decision did not specifically state that the acts of the wife affected the mental or physical health of husband, the reasonable inference to be drawn from the language used was that her conduct caused respondent substantial mental suffering, thus supporting the necessary allegation of extreme cruelty. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

Violent Conduct While Intoxicated.

Husband’s desertion of and infidelity to wife; his causing his minor children, with whom wife had developed strong emotional bonds during the five and one-half years of the marriage, to leave the home; and the financial stress resulting from husband’s desertion and failure to provide sufficient support to the household budget and repayment of their joint indebtedness resulted in such emotional and mental suffering, to lead to wife’s nervous breakdown and consequent hospitalization and supported finding of extreme cruelty. Campbell v. Campbell, 120 Idaho 394, 816 P.2d 350 (Ct. App. 1991). Violent Conduct While Intoxicated.

A defendant’s testimony of plaintiff’s violent conduct toward him while under the influence of alcohol and narcotics was sufficient support for the decree of the court granting a divorce to the defendant on his cross-complaint. Johnson v. Johnson, 92 Idaho 365, 442 P.2d 775 (1968).

ALR.

§ 32-606. Wilful desertion.

Wilful desertion is the voluntary separation of one of the married parties from the other with intent to desert.

History.

R.S., § 2460; reen. R.C. & C.L., § 2650; C.S., § 4630; I.C.A.,§ 31-606.

Cross References.

Continuation of cause,§ 32-609.

Justifiable Desertion.

Where husband establishes a new home and requests his wife to follow him and furnishes her the means with which to travel, and she declines to take up her residence with him, husband is not guilty of desertion because he fails to support his wife during her absence. Roby v. Roby, 10 Idaho 139, 77 P. 213 (1904).

Husband who fails, neglects, or refuses to furnish his wife with a suitable home, according to his condition, and refuses to support her, is not in a position to successfully charge her with desertion if she leaves him and seeks employment whereby she may support herself. Bell v. Bell, 15 Idaho 7, 96 P. 196 (1908).

Mental Suffering.

It is not necessary for a trial judge to enumerate the evidentiary facts which caused mental suffering. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

Sufficiency of Evidence.

Evidence that a husband had lived in California for more than a year and had refused to live or reside with his wife, although she offered reconciliation, was sufficient for the granting of a divorce to the wife for desertion. Losee v. Losee, 91 Idaho 77, 415 P.2d 720 (1966).

Time Period.

Because the parties were not separated for at least one year prior to the filing of wife’s counterclaim for divorce on the ground of wilful desertion, the court erred in granting the divorce on that basis. Campbell v. Campbell, 120 Idaho 394, 816 P.2d 350 (Ct. App. 1991).

RESEARCH REFERENCES

ALR.

Separation within statute making separation a substantive ground for divorce. 35 A.L.R.3d 1238.

Refusal of sexual intercourse as justifying divorce or separation. 82 A.L.R.3d 860.

Cross References.

Continuation of cause,§ 32-609.

Penalty for neglect of wife and children,§ 18-401 et seq.

Cross References.

Continuation of cause,§ 32-609.

Periodic Drunkenness.

Statute does not mean that a person would have to be drunk all the time, neither does it provide that he shall be incapacitated from pursuing his usual labors during any particular hours, or any time, but it does mean one who has a fixed habit of frequently getting drunk, and that such drunkenness causes innocent party to suffer great mental anguish and suffering. De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664 (1913).

Statute does not provide that the person shall be generally drunk, or that he is drunk more hours than he is sober. It is sufficient that he have the habit and that the habit is firmly fixed upon him; that he gets drunk with recurring frequency periodically, or that he is unable to resist when opportunity and temptation are presented. De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664 (1913).

ALR.

§ 32-609. Continuation of cause.

Wilful desertion, wilful neglect or habitual intemperance must continue for one (1) year before either is a ground for divorce.

History.

R.S., § 2463; reen. R.C. & C.L., § 2653; C.S., § 4633; I.C.A.,§ 31-609.

Desertion by Husband.

Where husband first deserts his wife and remains absent from her for a period in excess of that prescribed by this section, she may thereafter refuse to live with him and can maintain an action against him for a divorce, or defeat an action brought by him against her for such divorce. Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938 (1908).

Time Period for Desertion.

Because the parties were not separated for at least one year prior to the filing of wife’s counterclaim for divorce on the ground of wilful desertion, the court erred in granting the divorce on that basis. Campbell v. Campbell, 120 Idaho 394, 816 P.2d 350 (Ct. App. 1991).

Alimony.

In suit by husband, a resident of Canada, against wife, a resident of Michigan, for divorce based on five years separation where evidence showed that wife helped husband to develop his business and where husband had a business valued at $27,000 and wife lived in a “shack” and had borrowed $1,400 to come to Idaho to defend proceeding, an award of alimony for $2,000 was insufficient, and supreme court increased award to $8,000. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Cohabitation.

Where husband was away from usual abode for military duty but supported his wife, visited her in her home, entertained guests with her, and at times slept in the same bed with her, the husband was not living separate and apart from his wife. Jordan v. Jordan, 69 Idaho 513, 210 P.2d 934 (1949).

A divorce decree under this section will not be disturbed on appeal where, during the separation period, the parties on four occasions slept under the same roof, on one such occasion sleeping in the same bed and on another sleeping in the same room in separate beds, but evidence was conflicting as to whether the parties had sexual intercourse. Adams v. Adams, 89 Idaho 84, 403 P.2d 593 (1965).

Continuity of Separation.

The five year separation period required by this section must be continuous and uninterrupted. Jordan v. Jordan, 69 Idaho 513, 210 P.2d 934 (1949).

Defenses.

Recriminatory defense cannot be asserted in suit based on this section. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Fault of Parties.

Divorce under this section is granted on the ground of public policy and not on the ground of fault of either of the parties. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Fault of parties to suit for divorce based on five years separation should be considered in making division of property or award of alimony. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Provisions Mandatory.

In suit for divorce based on five years separation, it could not be contended as a defense that period of time when complainant was married to another and could not be located by the defendant could be counted, since provisions of this section are mandatory and fault will not be considered. Finnegan v. Finnegan, 76 Idaho 500, 285 P.2d 488 (1955).

ALR.

Separation within statute making separation a substantive ground for divorce. 35 A.L.R.3d 1238.

Refusal of sexual intercourse as justifying divorce or separation. 82 A.L.R.3d 860.

Recrimination.

In proceeding for divorce by husband based on extreme cruelty consisting of continual and habitual criticism by wife of husband’s attempts to make a living, the wife did not establish defense of recrimination based on relationship of husband with another woman which was not discovered by wife until after husband left her. Howay v. Howay, 74 Idaho 492, 264 P.2d 691 (1953).

Time Limitation.

The limitation referred to in subdivision 4 of this section is not applicable to a case in which the complaining party endured the other party’s offensive conduct over a period of years until driven by cumulative effect of it to seek a divorce. Fischer v. Fischer, 92 Idaho 379, 443 P.2d 463 (1968).

ALR.

§ 32-612. Collusion.

Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce, and is a bar to an action for such acts.

History.

R.S., § 2465; reen. R.C. & C.L., § 2655; C.S., § 4635; I.C.A.,§ 31-611.

ALR.

§ 32-613. Recrimination.

Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff’s cause of divorce.

History.

R.S., § 2466; reen. R.C. & C.L., § 2656; C.S., § 4636; I.C.A.,§ 31-612.

Divorce Requested by Both Parties.

The doctrine of recrimination did not apply to an action in which each party asked for a divorce from the other, with counsel reading prepared written statements of the parties in lieu of testimony concerning grounds for divorce, where the trial was reopened on the motion of plaintiff solely to permit further evidence concerning property valuations. Johnson v. Johnson, 92 Idaho 365, 442 P.2d 775 (1968).

Indiscretion as Recrimination.

Mere indiscretion, though reprehensible, does not amount to recrimination. Morrison v. Morrison, 38 Idaho 45, 221 P. 156 (1923).

Recrimination a Defense.

Defense of recrimination constitutes a complete bar to a divorce, when defendant shows a valid existing cause of action for divorce against plaintiff. Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938 (1905).

In proceeding for divorce by husband based on extreme cruelty consisting of continual and habitual criticism by wife of husband’s attempts to make a living, the wife did not establish defense of recrimination based on relationship of husband with another woman which was not discovered by wife until after husband left her. Howay v. Howay, 74 Idaho 492, 264 P.2d 691 (1953).

ALR.

Fault of spouse as affecting right to divorce under statute making separation a substantial ground of divorce. 14 A.L.R.3d 502.

Cumulative Effect of Offensive Conduct.

This section is not applicable to a case in which the complaining party endured the other party’s offensive conduct over a period of years until driven by the cumulative effect of it to seek a divorce. Fischer v. Fischer, 92 Idaho 379, 443 P.2d 463 (1968).

Defenses.

Barred causes of action for divorce cannot be urged as recriminatory defenses. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Discovery.

Where wife did not “discover” husband’s affair until 1989 and never discovered many of husband’s other acts of adultery, there was substantial and competent evidence that the divorce based on adultery was not barred by the statute of limitations. Smith v. Smith, 124 Idaho 431, 860 P.2d 634 (1993).

Lapse of Time.

In suit by former resident of Canada for divorce based on five years separation, a cross complaint by defendant wife, a resident of Michigan, based on desertion, neglect, and cruelty occurring more than ten years prior thereto was barred by this section, since it would be assumed that the law of Michigan was the same as the law of Idaho where no evidence was introduced as to law of Michigan. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Subdivision 3 of this section does not apply to a case in which the complaining party endured the other party’s offensive conduct over a period of years until driven by the cumulative effect of it to seek a divorce. Fischer v. Fischer, 92 Idaho 379, 443 P.2d 463 (1968).

Substantial Reasons.

Since this section embodies no fault criterion, the trial court may grant a divorce in favor of spouse though not requested by that spouse if, for “substantial reasons,” the marriage had deteriorated beyond conciliation. Ripatti v. Ripatti, 94 Idaho 581, 494 P.2d 1025 (1972).

ALR.

Transvestism or transsexualism of spouse as justifying divorce. 82 A.L.R.3d 725.

Jurisdiction.

In actions for divorce, determination of whether plaintiff has been a resident of the state for the required time is not a question of jurisdiction, but with determination of “domicil” it is otherwise, for jurisdiction of the res depends on “domicil.” Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031 (1949).

This section does not diminish the broad jurisdiction of courts in divorce actions created by the Constitution, it merely prescribes a condition or qualification which the plaintiff must meet to entitle him to a divorce. Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031 (1949).

Residence.

A divorce decree cannot be granted in contravention of this section but must be set aside where plaintiff does not allege the fundamental essential, namely six full weeks residence in this state. Rickman v. Rickman, 80 Idaho 172, 327 P.2d 376 (1958).

— Changes of Domicil.

Temporary absence from state is not change of residence unless party intends to acquire new domicil. Reubelmann v. Reubelmann, 38 Idaho 159, 220 P. 404 (1923).

To effect a change of domicil, there must be a removal and an intent, and the fact that the removal is accomplished because of the performance of a duty by reason of being in the service of the United States is immaterial, where the intent is established. Hawkins v. Winstead, 65 Idaho 12, 138 P.2d 972 (1943).

— Defined.

“Residence” as used in this section means domicil. Reubelmann v. Reubelmann, 38 Idaho 159, 220 P. 404 (1923).

Actual residence as distinguished from a constructive residence is required. Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950 (1950).

— Elements.

To constitute a residence within meaning of statute, there must be a habitation or abode in a particular place, for the required time, and an intention to remain there permanently or indefinitely. Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950 (1950); Smestad v. Smestad, 94 Idaho 181, 484 P.2d 730 (1971).

— Evidence.

If evidence on good faith of plaintiff’s domicil is conflicting, the determination of the court upon the issue based on substantial and competent evidence is conclusive. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Wife, a former resident of California, was entitled to a divorce in Idaho where evidence by herself and two corroborating witnesses showed that she intended to abandon residence in California and establish a new residence in Idaho. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

A reasonable inference to be drawn from the court’s finding that plaintiff should be granted a divorce was that plaintiff’s residence within this state was of such nature and duration as was necessary to meet the statutory requirements, otherwise the court would not have found that plaintiff was entitled to a divorce. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

Where evidence was submitted by wife that husband had left property in the state of Nebraska where he had been a lifelong resident, that he had no relatives in Idaho and was not a registered voter in Idaho and where husband testified that he did not come to Idaho for the purpose of obtaining a divorce but rather for the purpose of living in Idaho where he was seeking employment and an escape from the circumstances of his life in Nebraska, finding that husband was a resident of and domiciled in Idaho would not be set aside, such issue of fact of residence being for the trial judge’s consideration. Milbourn v. Milbourn, 86 Idaho 213, 384 P.2d 476 (1963).

The trial court having determined the issue of husband’s Idaho residence at the time of divorce upon substantial and competent though conflicting evidence, its findings will not be set aside by the supreme court. Milbourn v. Milbourn, 86 Idaho 213, 384 P.2d 476 (1963).

Where all the pleadings of the parties alleged the residence of both parties in Idaho for more than six months prior to the commencement of the action in 1965 and defendant testified that “right after the marriage” in 1960 they established their residence in Idaho, the defendant’s residence was sufficiently shown. Johnson v. Johnson, 92 Idaho 365, 442 P.2d 775 (1969).

Where record indicated the plaintiff arrived in state of Idaho on September 29, and informed his wife in December of that year that he “was not coming home,” based on this evidence, trial court found that the plaintiff actually resided within the state of Idaho for at least six weeks pursuant to the statute and therefore trial court had jurisdiction over the divorce proceedings instituted by the plaintiff after the completion of the six week period. Smestad v. Smestad, 94 Idaho 181, 484 P.2d 730 (1971).

— Intent to Establish.

Where evidence showed that member of armed forces had for more than six weeks immediately preceding commencement of divorce action been a resident of the state and that he intended to remain as long as permitted by the Air Force, the residency requirement of this section was satisfied. Bezold v. Bezold, 95 Idaho 131, 504 P.2d 404 (1972). — Intent to Establish.

It is essential before a person can lawfully file a complaint for divorce that he shall have been actually a bona fide resident for six weeks preceding commencement of the action, and an intention to reside in Idaho in the future is not sufficient. Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950 (1950).

— Member of Armed Services.

A soldier in the United States Army stationed at an air base within the state, but living off the base by permission of his commanding officer, could establish a new “residence” in the county and state for the purpose of maintaining a divorce suit, notwithstanding the constitutional provision that residence for voting purposes is not lost or gained by reason of presence or absence while employed in the service of the United States. Hawkins v. Winstead, 65 Idaho 12, 138 P.2d 972 (1943).

ALR.

What constitutes residence or domicile within state by citizen of another country for purpose of jurisdiction in divorce. 51 A.L.R.3d 223.

Validity of statute imposing durational residency requirements for divorce applicants. 57 A.L.R.3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen. 73 A.L.R.3d 431.

Evidence.

Wife, a former resident of California, was entitled to a divorce in Idaho where evidence by herself and two corroborating witnesses showed that she intended to abandon residence in California and establish a new residence in Idaho. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

Where plaintiff failed to establish, by clear and convincing evidence, that defendant perjured himself when he testified as to his subjective intent concerning domicil when he came to Idaho, the trial court did not abuse its discretion in denying her motion to set judgment aside. Willis v. Willis, 93 Idaho 261, 460 P.2d 396 (1969).

Jurisdiction.

The law of the place of the actual, bona fide domicil of a complaining spouse, acquired in compliance with the requirements of this section, gives jurisdiction to the proper courts to decree divorce for any cause allowed by the local law, without any reference to the law of the place of the marriage or of the place where the offense complained of was committed. Stewart v. Stewart, 32 Idaho 180, 180 P. 165 (1919).

Venue.

This section and§ 32-715 do not fix venue in divorce cases. Section 5-404 governs. Finnel v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

This section allows separate domicils after separation but does not fix the venue of divorce suits in any particular county where both parties reside within the state. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

A failure to retain jurisdiction of wife’s divorce action in a county which was not that of the husband’s residence was not an abuse of discretion, where the wife merely stated that it would be inconvenient for her to prosecute the action in the county of the husband’s residence, but did not name her witnesses, or, if there were witnesses in the county where the action was brought, did not state whether they would testify as to transactions in the county of the husband’s residence where the alleged cruelty and failure to support occurred. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

ALR.

Domestic recognition of divorce decree obtained in foreign country and attacked for lack of domicile or jurisdiction of parties. 13 A.L.R.3d 1419.

What constitutes residence or domicile within state by citizen of another country for purpose of jurisdiction in divorce. 51 A.L.R.3d 223.

Soldiers’ and Sailors’ Civil Relief Act, effect of. 35 A.L.R. Fed. 649.

Inference As to Grounds for Divorce.

Where the complaint, in divorce action wherein divorce was granted upon default, did not charge adultery beyond such inferences as might be drawn from the allegation of cruelty in that “defendant has engaged in numerous affairs with other men” and no evidence of adultery was offered, the defendant would not be considered to have been divorced for adultery so as to render her consent unnecessary in a proceeding for the adoption of her children. Leonard v. Leonard, 88 Idaho 485, 401 P.2d 541 (1965).

Opening Defaults.

Every reasonable opportunity should be afforded each of the parties to a full hearing, and a liberal rule adopted in opening defaults. Darwin v. Darwin, 27 Idaho 303, 149 P. 467 (1915).

Compiler’s Notes.

The term “this act” in the first sentence in subsection 3 refers to S.L. 1980, Chapter 378, which is compiled as§§ 32-704 to 32-709, 32-712, 32-717, 32-718, 32-804. The term probably should read “this chapter,” being chapter 7, title 32, Idaho Code.

Award of Costs and Attorney’s Fees.

There is nothing in this section that confines attorney’s fee to future and not to past services. Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921).

While action for divorce could not be resumed after condonation, it could be continued for purpose of compelling husband to pay wife’s attorney’s fees. Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Where decree did not require husband to pay fees of wife’s attorney, the court could not fix fees of attorneys in the proceeding, or place a lien for such fees on real estate in which wife had an interest. Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999 (1953).

It was error for the trial court to disallow attorney fees and costs to defendant wife in divorce action where neither party had ample funds with which to prosecute the appeal. Lovell v. Lovell, 80 Idaho 251, 328 P.2d 71 (1958).

Even though the husband was granted divorce on the ground of extreme cruelty, trial court erred in denying allowance of attorney fees to wife, since this statute contemplates the husband must, if possible, help her bear the expense. Riggers v. Riggers, 81 Idaho 570, 347 P.2d 762 (1959).

The allowance of attorney fees is discretionary with the trial court, and an award of $100 in addition to $150 paid before the trial was not unreasonable. Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).

Failure to award the plaintiff-wife more than $1,000 above the minimum attorney’s fee suggested by the state bar association advisory fee schedule for a contested divorce was not an abuse of discretion. Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968). The court did not abuse its discretion in awarding attorney’s fees to the wife even though the husband was the prevailing party. Lepel v. Lepel, 93 Idaho 82, 456 P.2d 249 (1969).

Attorney’s fees must be allowed at the discretion of the trial court whenever one parent to a child custody case, whether husband or wife, is found to be unable to proceed without payment of attorney’s fees, and where the other parent is able to pay that amount, notwithstanding the outcome of the appeal. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

Where wife had assets valued at approximately $68,000, the trial court’s determination that she had sufficient assets to pay her attorney fees could not be characterized as an abuse of discretion. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

The award of attorney fees under this section is discretionary with the trial court; where a party has sufficient assets to pay attorney fees, it is not an abuse of discretion to deny a request for a fee award. Sherry v. Sherry, 108 Idaho 645, 701 P.2d 265 (Ct. App. 1985).

This section authorizes the trial court to award attorney fees in an action to modify a divorce decree, where the financial resources of the parties so dictate; such an award is not appropriate where a party has the financial resources necessary to prosecute or defend the action. Golder v. Golder, 110 Idaho 57, 714 P.2d 26 (1986).

Where the wife was awarded an additional $166,000 as her share of the parties’ community property, it cannot be said that she was without sufficient funds to pay her attorney fees. Golder v. Golder, 110 Idaho 57, 714 P.2d 26 (1986).

Where, in a divorce action, the husband presented neither a genuine legal issue nor a cogent challenge to the judge’s exercise of discretion, the wife was awarded attorney fees under this section. McPherson v. McPherson, 112 Idaho 402, 732 P.2d 371 (Ct. App. 1987).

The trial court did not abuse its discretion by awarding attorney fees to the wife and requiring the husband to pay those attorney fees as part of the community debt. Shurtliff v. Shurtliff, 112 Idaho 1031, 739 P.2d 330 (1987).

The award of attorney fees in divorce actions and marital property divisions has long been the province of the trial court, and the court is bound by the standard pronounced in this section and§ 32-705. Beesley v. Beesley, 114 Idaho 536, 758 P.2d 695 (1988).

The magistrate acted within his discretion in awarding attorney fees to wife. Desfosses v. Desfosses, 120 Idaho 354, 815 P.2d 1094 (Ct. App. 1991).

For a court to award attorney fees, it must consider the financial resources of the parties and the factors in§ 32-705. Bell v. Bell, 122 Idaho 520, 835 P.2d 1331 (Ct. App. 1992).

Neither party was entitled to attorney fees pursuant to subsection 3, because there was nothing in the record that indicated that either party presented a request for such an award under the statute to the magistrate or district court judge, nor did they provide any information to the court to support the request. Gustaves v. Gustaves, 138 Idaho 64, 57 P.3d 775 (2002).

Trial court did not abuse its discretion in awarding attorney fees, as the husband earned approximately 84 percent of the parties’ combined income and also owned investment and income-producing property; although the wife was awarded assets of a significant value in the divorce, many of the assets, such as the house and other real property, were not liquid. Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

In a divorce action, the magistrate did not abuse his discretion when he denied the wife’s request for attorney fees and costs, because the same evidence that supported the denial of maintenance, showing that the wife could meet her monthly expenses, also supported a denial of her request for attorney fees and costs. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003). In a property division action as part of a divorce, a former wife was not entitled to attorney’s fees, because the previously unsettled state of the law on the characterization of professional goodwill made an award of attorneys fees inappropriate, and because the wife made no showing of necessity to the court. Stewart v. Stewart, 143 Idaho 673, 152 P.3d 544 (2007).

— Discharge Under Bankruptcy Code.

Award of expert witness costs was based upon ex-wife’s prevailing in action for equitable restitution, not on financial need, and therefore was not in nature of support under Bankruptcy Code, 11 U.S.C. § 523(a)(5) and was therefore dischargeable. Hainline v. Neal, 179 Bankr. 234 (Bankr. D. Idaho 1995).

Attorney fees, if awarded on remand, would be in the nature of support and therefore an exception to discharge under Bankruptcy Code, 11 U.S.C. § 523(a)(5). Hainline v. Neal, 179 Bankr. 234 (Bankr. D. Idaho 1995).

— Financial Need.

Subsection (2) is not the exclusive avenue available to a party seeking attorney fees in a divorce action. A court may award fees based on financial need under this section; however,§ 12-121 applies to all civil actions. Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Where magistrate’s decision indicated that he had reviewed the factors set forth in this section and in§ 32-705, and found that each party had sufficient property and employment to provide for his or her reasonable needs, he did not abuse his discretion in denying attorney fees to mother pursuant to this section. Jensen v. Jensen, 128 Idaho 600, 917 P.2d 757 (1996).

Where mother stipulated in reply brief that the court could rely on the financial record before the magistrate in determining whether mother was entitled to attorney fees on appeal, magistrate’s finding that each party had sufficient property and employment to provide for their reasonable needs precluded award. Jensen v. Jensen, 128 Idaho 600, 917 P.2d 757 (1996).

The magistrate did not abuse its discretion in awarding attorney fees pursuant to subsection (3) where the magistrate found that a substantial disparity existed between the incomes of the parties, that the wife was incapable of paying her own attorney fees, and that the husband could afford to pay those fees for her, and these findings were supported by substantial and competent evidence contained in the record. Perez v. Perez, 134 Idaho 555, 6 P.3d 411 (Ct. App. 2000).

Disparity in income is sufficient to support a magistrate’s conclusion that the party with the higher income should pay a share of the other party’s attorney fees under this section. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

— Not Appropriate.

Where the trial court found that wife was able to support herself through employment and she was underemployed and where husband did not have the ability to pay wife’s attorney fees because he was supporting another family and would be paying increased child support, the trial court did not abuse its discretion by refusing to award attorney fees to wife. Ireland v. Ireland, 123 Idaho 955, 855 P.2d 40 (1993), overruled on other grounds, Zenner v. Holcomb, 147 Idaho 444, 210 P.3d 552 (2009).

Where the record and arguments made in a divorce action did not lead to a conclusion that the action was brought, pursued, or defended frivolously, nor was unreasonable or without foundation, attorney’s fees were inappropriate. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995). In a proceeding to modify a divorce decree, where it was determined that the defenses of the party objecting to the proposed modification were not pursued or defended frivolously, unreasonably or without foundation and where the magistrate’s decision did not apply the factors set forth in§ 32-705, the magistrate’s decision to award attorney fees was in error and could not be upheld. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

Because defendant did not seek an order from the judge requiring plaintiff to pay her attorney’s fees on appeal in divorce action, fees would not be awarded unless it was necessary to the exercise of appellate jurisdiction and as defendant had been able to defend appeal thus far, an award of attorney’s fees was not necessary and denied under this section. Wilson v. Wilson, 131 Idaho 533, 960 P.2d 1262 (1998).

Where a plaintiff did not seek an order from the district judge requiring the defendant to pay her attorney fees on appeal, and where such an award was not necessary to the exercise of appellate jurisdiction because the plaintiff had been able to defend the appeal, attorney fees were not awarded. Thomas v. Worthington, 132 Idaho 825, 979 P.2d 1183 (1999).

Where a mother acted in violation of a magistrate’s order regarding the relocation of two minor children, awarding fees under this section was inappropriate. Roberts v. Roberts, 138 Idaho 401, 64 P.3d 327 (2003).

— On Appeal.

On appeal, supreme court will award wife costs and attorney’s fees to prosecute or defend the appeal. Roby v. Roby, 10 Idaho 139, 77 P. 213 (1904); Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938 (1905); Spofford v. Spofford, 18 Idaho 115, 108 P. 1054 (1910).

Where, in a divorce suit, it appeared that defendant was a wealthy man, and his wife was without means to properly prosecute her suit for divorce, court would allow her attorney’s fees on an appeal from order refusing to change place of trial. Day v. Day, 12 Idaho 556, 86 P. 531 (1906).

When lower court allows an inadequate amount, its order will be revised on appeal. Day v. Day, 12 Idaho 556, 86 P. 531 (1906).

Order requiring husband to pay wife fees to combat husband’s appeal from order allowing wife counsel fees was not improper as being collateral to main action. Largilliere v. Largilliere, 50 Idaho 496, 298 P. 362 (1931).

Being without funds or property does not absolve husband from duty to provide wife with funds necessary to pay costs and attorney’s fees on appeal. Bedke v. Bedke, 56 Idaho 235, 53 P.2d 1175 (1935) (Decision prior to 1980 amendment).

Where there is an uncertainty as to the financial ability of either party to pay attorneys’ fees and costs of printing brief on appeal and uncertainty as to disposition of the case, a motion by respondent for attorneys’ fees and costs will not be considered and determined until disposition of the appeal. McHan v. McHan, 59 Idaho 41, 80 P.2d 29 (1938).

A husband was required, under this section, to pay attorney’s fees and costs of appeal of the wife from the order granting the husband’s motion for a change of venue of a divorce action to the county of the husband’s residence, notwithstanding the order was affirmed. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938) (Decision prior to 1980 amendment).

This section contemplates that the husband must, if financially able, at least help to bear the expense of appeal. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938) (Decision prior to 1980 amendment). Where district court had made order against husband to provide funds for payment of costs and expenditure of wife’s appeal, supreme court would not enforce order where wife had borrowed funds to perfect appeal, since district court was able to enforce its own orders. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

The trial court may, under prescribed conditions, allow attorney fees and costs on appeal from the trial court’s decision in divorce case. Wenzel v. Wenzel, 76 Idaho 7, 276 P.2d 485 (1954).

Where wife was without funds and was in poor health, and husband was in control of community funds and was earning $750 a month in wages, the trial court did not abuse its discretion in requiring husband to pay $500 to wife’s counsel for conduct of appeal proceeding. Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954).

Where a divorce action was still pending because of the pending question of child custody, an allowance by the trial court of $50 for the wife’s attorney’s fee on appeal did not constitute a limitation upon the amount to be allowed therefor, since the mother of the children had a right to be represented, the matter of fixing the balance of attorney’s fee in addition to the sum of $50 allowed resting in the discretion of the trial court. Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961).

Where an appeal in a divorce case is brought frivolously and without foundation, an appellate court may award fees under§ 12-121. In such a case, the amount awarded is fixed by reference to the Idaho Rules of Civil Procedure, which enables the judge to consider the factors listed in§ 32-705 and incorporated by reference into subsection 2. In this way§ 12-121 plays a role in divorce cases without unduly encroaching upon the financial assistance scheme contemplated by subsection (2). Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Where party did not provide a transcript of the proceedings below, appellate court was unable to review the transcript to determine whether the magistrate found that she had sufficient assets to pay her own attorney fees, and, because error will not be presumed on appeal, the magistrate did not abuse his discretion by failing to award attorney fees and costs to said party. Brooks v. Brooks, 119 Idaho 275, 805 P.2d 481 (Ct. App. 1990).

Because it has been the policy of the Idaho supreme court to leave to the trial court, under the authority of this section, the making and enforcing of all orders necessary to provide a spouse with the means of prosecuting or defending an appeal, it was within the magistrate’s discretion to award attorney fees to wife for her defense of husband’s appeal to the district court. Perez v. Perez, 134 Idaho 555, 6 P.3d 411 (Ct. App. 2000).

An award of attorney fees pursuant to subsection (2) is not dependent upon who prevails, and the magistrate did not abuse its discretion in awarding attorney fees to the wife for her defense of the appeal to the district court without first determining that the wife was a prevailing party. Perez v. Perez, 134 Idaho 555, 6 P.3d 411 (Ct. App. 2000).

Neither a husband nor a wife were granted attorney fees in an appeal from the district court’s decision as to the magistrate’s distribution of their assets pursuant to a divorce action, where neither party had requested an award for such fees in the trial court; however, the husband was awarded costs because he was the prevailing party. Larson v. Larson, 139 Idaho 972, 88 P.3d 1212 (Ct. App. 2003).

— On Modification of Decree.

Where defendant sought to vacate decree after statutory time for so doing had elapsed, order vacating decree was without jurisdiction, and suit money granted for prosecution of such action was erroneous. Rice v. Rice, 46 Idaho 418, 267 P. 1076 (1928).

Where husband moved court to modify divorce decree respecting care and custody of children, court had authority to allow wife attorney’s fees in contest. Gifford v. Gifford, 50 Idaho 517, 297 P. 1100 (1931); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Wife was not entitled to recover costs in resisting husband’s application for modification of decree where she had been paid $280 even after her secret marriage and she had separate property. McHan v. McHan, 59 Idaho 496, 84 P.2d 984 (1938).

Trial court did not abuse its discretion in granting wife attorney fees and expenses necessary to defend husband’s petition to modify decree where she was required to travel from outside the state to attend hearing. Wright v. Wright, 76 Idaho 393, 283 P.2d 1101 (1955).

On appeal from order of court awarding respondent attorney fees and costs for an appeal from an order of modification of alimony payments, where parties to divorce action had entered into a property settlement agreement discharging the husband from any further liability in the payment of attorney fees or court costs in connection with the divorce action, the divorce action was held to be still pending in that the husband was seeking a modification of the decree and the allowance of support money and fees would be within the sound discretion of the court. Daniels v. Daniels, 81 Idaho 12, 336 P.2d 112 (1959).

A divorce action is still pending within the meaning of this section when the motion is made by the father to modify the decree respecting the care and custody of children, and the court has authority to allow wife’s attorney fees in the contest. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

When plaintiff mother acted on behalf of child in defending against defendant’s motion to modify the original decree of divorce in that he sought modification of the original decree to continue the payments of child support under the original decree and at such time child was defendant’s adjudged dependent and defendant was moving party, plaintiff was entitled to reasonable attorney fees and allowance of costs. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963); Adams v. Adams, 93 Idaho 113, 456 P.2d 757 (1969).

A wife’s averments in an affidavit in support of her motion for modification of a decree as to support provisions to the effect that she was unable to pay travel expenses, attorney’s fees, and costs were conclusions, and, in the absence of any factual showing of her incomes, resources, and financial condition, it was not an abuse of discretion on the part of the trial court to deny her motion for allowance of such expenses, fees, and costs. Turner v. Turner, 90 Idaho 308, 410 P.2d 648 (1966).

In an action for modification of a divorce decree, the award of attorney’s fees is discretionary with the court. Heidemann v. Heidemann, 96 Idaho 602, 533 P.2d 96 (1974).

Denial of attorney fees to former wife in action to modify divorce decree by increasing amount of child support was not an abuse of discretion by the trial court where the former wife had denied former husband his child visitation rights and where the former wife testified she could pay attorney fees if required. Heidemann v. Heidemann, 96 Idaho 602, 533 P.2d 96 (1974).

Great disparity in income between husband and wife was sufficient to support magistrate’s conclusion that husband should pay a share of ex-wife’s attorney’s fees in a custody modification proceeding. Pieper v. Pieper, 125 Idaho 667, 873 P.2d 921 (Ct. App. 1994).

— On Remand.

In a support modification case, while further explanation may have been helpful to understand a magistrate’s decision to award a former wife attorney fees, the magistrate met the minimum statutory requirements for awarding attorney fees; it considered and cited the statutory factors listed in its decision. Moreover, the record supported a finding of a disparity in income, since it contained a document entitled “Affidavit Verifying Income” that listed the former husband’s annual income as $72,000 and the former wife’s annual income as $36,750. Davies v. Davies, 160 Idaho 74, 368 P.3d 1017 (Ct. App. 2016). — On Remand.

A divorce action which is in the district court on remand from the supreme court is still “pending” within the meaning of this section and the trial court has jurisdiction to consider a motion for allowance of attorney’s fees even though the order of remand was silent on the subject. Tolman v. Tolman, 93 Idaho 374, 461 P.2d 433 (1969).

— Post-Divorce Proceedings.

The trial court may, pursuant to this section, make awards of costs and attorney fees in post-divorce decree proceedings. The financial resources of the parties must first be considered and then the factors under§ 32-705 must be considered and applied. Because there is no “community” in post-divorce decree proceedings, community property is not liable for these awards. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Where there was adequate evidence presented to demonstrate a disparity in incomes relating to the parties’ abilities to carry on an appeal of a child custody award, the magistrate judge was within his discretion in ordering the father to pay a portion of the mother’s attorney fees. The mother was not able to make ends meet and pay her attorney fees at the same time. The magistrate erred in making it an open-ended award without any determination about what a reasonable attorney fee would be. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

— Prior to Divorce Decree.

The rule that pre-divorce attorney fees must be treated as community debts has been statutorily set aside. Jensen v. Jensen, 124 Idaho 162, 857 P.2d 641 (1993).

Award of Temporary Maintenance.

Temporary support paid during pendency of divorce action should be paid to wife in addition to her own sources of income to maintain her according to her former manner of living. Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314 (1974) (Decision prior to 1980 amendment).

Where the action was “pending” within the meaning of this section while it was upon remand, the statute authorized the district court to award wife alimony for the time preceding the entry of final judgment. Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

Where wife had no control over whether the trial court would dispose of her request for alimony before or after it entered final judgment, the time for such request rather than the time the request was granted determined whether the trial court was authorized to award alimony under this section after final judgment had been entered. Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

Child Support.

Where both parties testified to a higher amount as reasonably required for child support, between $150 and $250 per month, award less than $150 per month for the child support was set aside. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

In a divorce action, it was proper for the district court to allow delinquent temporary child support to be used as an offset against the community property before distribution. Fisher v. Fisher, 104 Idaho 68, 656 P.2d 129 (1982).

Construction.

By phrase “while an action for divorce is pending” is meant any time from commencement of suit until and including final order disposing of same. Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

This is only statutory authority for allowances herein provided, and, where judgment has become final, there is no action pending to sustain application. Mathers v. Mathers, 40 Idaho 189, 232 P. 573 (1924).

Determining Amount.

In determining amount of allowance, court should take into consideration the wealth and social standing of the parties, their manner of living, present available means of wife, and ability and income of husband, her health and probable needs while suit is pending, as well as all other circumstances which may aid court in determining amount necessary to maintain wife during the suit, according to her former manner of living. Day v. Day, 15 Idaho 107, 96 P. 431 (1908) (Decision prior to 1980 amendment).

Where marriage of parties is admitted, in determining amount of alimony court should attempt to place each party in the position that neither should have advantage of the other in waging suit nor in presenting evidence to prove or disprove the falsity of allegations made. Day v. Day, 15 Idaho 107, 96 P. 431 (1908).

In taking evidence for purpose of fixing amount of attorney’s fees, court is not trying issue in case, but is seeking information as basis for its order. It is not bound by rules of evidence applicable to contesting litigants. Smiley v. Smiley, 46 Idaho 588, 269 P. 589 (1928).

In deciding the amount the husband should pay toward the separate maintenance and support of his family, the earning capacity of the wife, as well as that of the husband, should be taken into consideration. Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940) (Decision prior to 1980 amendment).

Discretion of Court.

Allowance of alimony and counsel fees pending an action of divorce rests in sound discretion of trial court. Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228 (1886); Morrison v. Morrison, 38 Idaho 45, 221 P. 156 (1923); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Where court had jurisdiction, the awarding of attorney’s fees was a matter which rested within the discretion of the trial court. Wilson v. Wilson, 81 Idaho 375, 341 P.2d 894 (1959).

This section vests original jurisdiction in the district court in a proper case to require the husband during the pendency of an appeal from a judgment in a divorce case to pay such sums as may be necessary to prosecute or defend the action, and the question of whether an award should be made, and, if made, the issue as to the amount necessary to pay costs and attorney’s fees on appeal are both addressed to the sound discretion of the trial court, and its order therein will not be reversed in the absence of an abuse of such discretion. Losee v. Losee, 91 Idaho 77, 415 P.2d 720 (1966) (Decision prior to 1980 amendment). In the absence of a showing that wife was unable to finance divorce litigation and support herself, the trial court’s limiting of temporary allowance when the wife found full-time employment and failure to make adjustment for wife’s cost was not an abuse of the trial court’s discretion under this section. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

In deferring to supreme court a decision on what husband should be required to pay for wife’s attorney’s fees on appeal, trial court failed to exercise discretion vested in it by this section. McNett v. McNett, 95 Idaho 59, 501 P.2d 1059 (1972).

Where plaintiff filed suit to enforce provisions in the parties’ divorce decree allowing variable child support payments, and where defendant then sought to modify the support schedule, the divorce action was pending and the district court therefore had discretion to award plaintiff any money necessary to enable her to prosecute or defend the action. Lester v. Lester, 99 Idaho 250, 580 P.2d 853 (1978).

Whether to allow attorney fees is within the discretion of the trial court, pursuant to this section. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Where the magistrate made specific findings of fact in exercising his discretion regarding the award of attorney fees and expert witness fees, he did not abuse his discretion in ordering that each party was responsible for his or her own respective attorney fees and that one party was responsible for the expert fees. McAffee v. McAffee, 132 Idaho 281, 971 P.2d 734 (Ct. App. 1999).

Effect of Denial.

Where supreme court, upon application for suit money, temporary alimony, and attorneys’ fees pending appeal, decided against such allowance, such decision is binding on subsequent appeal. Mathers v. Mathers, 42 Idaho 821, 248 P. 468 (1926).

Evidence.

There was substantial and competent evidence to support the trial court’s findings concerning an award of attorney’s fees to spouse. Mulch v. Mulch, 125 Idaho 93, 867 P.2d 967 (1994).

Factors.

Subsection (2) of this section did not intend the wholesale incorporation of every word of this section. Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990).

Failure to Qualify.

Since wife did not qualify under this section or§ 32-705 because there was no showing of fault, lack of assets or inability to support herself by employment, magistrate court was correct in treating the $1,000 monthly payment to the wife as a prejudgment distribution of a portion of the community property which would be awarded to the wife, and offset those distributions against the final award. Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

Fault.

Foreign Judgment.

Although a showing of fault is required for an award of temporary maintenance under subsection (1) of this section, requiring a showing made in conformity with§ 32-705, the trial court need only consider the factors set forth in§ 32-705 in considering whether to award costs and attorney’s fees to a party in a divorce action. Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990). Foreign Judgment.

A judgment of the Colorado court directing a husband to pay a specified sum per month for the support and maintenance of his wife and minor child is a final judgment as to any installments actually accrued, notwithstanding the judgment is subject to subsequent modification, and where no modification of a decree rendered by a court of a sister state has been actually made prior to the maturity of such installments, the installments already accrued under such a judgment constitute a debt which will support an action at law; and under art. IV, § 1 of the Constitution of the United States, such judgment is entitled to full faith and credit in an Idaho court. Cormana v. Naron, 37 Idaho 482, 217 P. 597 (1923).

Jurisdiction.

Where appeal has been taken from judgment in a divorce case, district court still retains jurisdiction to make orders directing payment of costs, expenses and attorneys’ fees, necessary in the preparation and perfection of appeal. Roby v. Roby, 9 Idaho 371, 74 P. 957 (1903); Galbraith v. Galbraith, 38 Idaho 15, 219 P. 1059 (1923); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Original jurisdiction in granting alimony and suit money is vested in district court and judges thereof at chambers. Supreme court can exercise jurisdiction in such matters only where necessary to a complete exercise of its appellate jurisdiction. Callahan v. Dunn, 30 Idaho 225, 164 P. 356 (1917); Enders v. Enders, 34 Idaho 381, 201 P. 714 (1921); Hay v. Hay, 40 Idaho 624, 235 P. 902 (1925); Vollmer v. Vollmer, 43 Idaho 395, 253 P. 622 (1927); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Original jurisdiction in matter of granting alimony and suit money in connection with divorce actions is vested in district courts and judges thereof at chambers. Enders v. Enders, 34 Idaho 381, 201 P. 714 (1921); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Where divorce decree did not award alimony and it had become final by operation of law and the time for modification or amendment had expired, the district court was without jurisdiction to reopen the case and modify the decree. McDonald v. McDonald, 56 Idaho 444, 55 P.2d 827 (1936); Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

The supreme court has no power of enforcing orders made in a divorce action and no jurisdiction over orders made in a district court except by reason of and through its appellate jurisdiction. Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

Trial court in divorce action retains jurisdiction to make orders for attorney’s fees, costs and expenses necessary in the preparation and presentation of the appeal and enforcement of order of district court granting such allowance must come from the district court, the supreme court having no authority to enforce compliance with the orders of the district court. Ex parte Cole v. Cole, 68 Idaho 257, 193 P.2d 395 (1948).

A motion by appellant for support money, costs of appeal, and attorney fees filed one day prior to date for oral argument on appeal was not necessary to exercise of court’s appellate jurisdiction, especially where affidavit stated that appellant was able to borrow the money required for the expenses. Finnegan v. Finnegan, 76 Idaho 500, 285 P.2d 488 (1955).

Pursuant to this section, the district court has original jurisdiction in determining whether to require one spouse, during the pendency of an appeal from a judgment in a divorce action, to pay to the other spouse such sums as may be necessary for that spouse to prosecute or defend the action. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004). Idaho appellate courts will not ordinarily order attorney’s fees under this section unless an award is essential to enable the exercise of appellate jurisdiction. Where, without any award of attorney’s fees for appellate proceedings, wife was able to respond to husband’s appeal to the court of appeals, pursue a second motion for attorney’s fees before the magistrate, and, albeit improperly, present argument on appeal challenging the magistrate’s denial of that second motion, she has not demonstrated that an attorney’s fee order from an appellate court is necessary for the exercise of that court’s appellate jurisdiction. Olson v. Montoya, 147 Idaho 833, 215 P.3d 553 (Ct. App. 2009).

Misconduct as Affecting Allowance.

Where attorney for wife was responsible for acts of extreme cruelty on her part which might be basis for divorce, husband was not required to pay for services of such attorney rendered in cause. Callahan v. Callahan, 33 Idaho 241, 192 P. 660 (1920).

Where a divorced wife’s continued wilful disobedience of the visitation decree of the court occasioned the repeated applications by her former husband for help of the court in securing the right of visitation, such divorced wife was not entitled to an order having the effect of requiring her former husband to finance her defense in litigation resulting solely from her contemptuous conduct. Kirkwood v. Kirkwood, 83 Idaho 444, 363 P.2d 1016 (1961).

Remarriage.

Where husband and wife, in contemplation of divorce, entered into property settlement agreement, and wife in subsequent uncontested divorce was awarded $35 per month during her lifetime, subsequent remarriage of wife relieved husband of all further payments as of the date of said marriage. McHan v. McHan, 59 Idaho 496, 84 P.2d 984 (1938).

Settlement Agreements.

Existence of property settlement between husband and wife does not prevent allowance of suit money in action for divorce. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Settlement Contracts.

Husband would not be guilty of contempt for breach of contract to pay alimony, by failure to make a payment which the court had not ordered him to make but the amounts of which and the time they were to be made were fixed by a contract entered into between the parties after their divorce. McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293 (1936).

A husband and wife may contract for the allowance of suit money to the wife. Reeves v. Andersen, 89 Idaho 512, 406 P.2d 812 (1965).

Statement of Factors Considered.

Under this section the court may order a party to pay a reasonable amount for attorney fees if it reviews the financial resources of the parties and the factors set forth in§ 32-705, but in order to make the award under this section, the court must consider and cite factors listed in§ 32-705 in its decision and where magistrate failed to identify any statute or contractual provision on which an award of attorney fees was based, an award of fees was not proper under these sections. Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995). When awarding attorney fees pursuant to this section, a trial court must make specific findings on the factors listed in§ 32-705 to justify granting a motion for attorney fees; similarly, a trial court must also apply the same requirements and consider the same factors when denying a motion for attorney fees. Antill v. Antill, 127 Idaho 954, 908 P.2d 1261 (Ct. App. 1996).

Suspension of Payments.

Court has power to make order authorizing husband to withhold alimony payments until further order though the persons having custody of the fund be not made parties to the suit. McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293 (1934).

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

Tailoring the Rules: Finding the Right Fit of Rules of Procedure to Suit Idaho Family Law, Comment. 52 Idaho L. Rev. 755 (2016).

ALR.

Retrospective increase in allowance for alimony, separate maintenance, or support. 52 A.L.R.3d 156.

Wife’s possession of independent means as affecting her right to alimony pendente lite. 60 A.L.R.3d 728.

Wife’s possession of independent means as affecting her right to child support pendente lite. 60 A.L.R.3d 832.

Excessiveness or adequacy of money awarded as child support. 27 A.L.R.4th 864.

Excessiveness or adequacy of amount of money awarded for alimony and child support. 27 A.L.R.4th 1038.

Court’s authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is tested. 34 A.L.R.4th 814.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases. 17 A.L.R.5th 366.

Compiler’s Notes.

Former§ 32-705 was amended and renumbered as§ 32-717 by S.L. 1980, ch. 378, § 3.

Award of Community Property.

There was substantial and competent evidence to support an award of spousal maintenance, despite the award of community property to wife. Mulch v. Mulch, 125 Idaho 93, 867 P.2d 967 (1994).

Basis for Award.

The court did not err in granting support plus educational expenses to the wife, where the court found that the wife’s personal property and her share of community property were insufficient to meet her needs and that the wife was unable to support herself through employment. Shurtliff v. Shurtliff, 112 Idaho 1031, 739 P.2d 330 (1987).

The award of attorney fees in divorce actions and marital property divisions has long been the province of the trial court and the court is also bound by the standard pronounced in§ 32-704 and this section. Beesley v. Beesley, 114 Idaho 432, 758 P.2d 695 (1988).

Where it was found that 48 year old spouse was the “innocent spouse”; that she lacked sufficient property to support herself; that she could not obtain employment at the time of the divorce because her medical technician skills were outdated; and that it would take approximately two to three years for her to retrain herself and these findings were supported by substantial evidence, award of permanent alimony was correct. McNelis v. McNelis, 119 Idaho 349, 806 P.2d 442 (1991).

The standard applied by the magistrate inappropriately focused upon wife’s financial position existing prior to her marriage but what lifestyle would have been warranted in light of the spouses’ incomes and resources during the marriage should have been considered. Campbell v. Campbell, 120 Idaho 394, 816 P.2d 350 (Ct. App. 1991).

There was substantial and competent evidence to support the trial court’s consideration of husband’s overtime wages. Mulch v. Mulch, 125 Idaho 93, 867 P.2d 967 (1994).

Where evidence showed that 51-year-old wife had spent 28 of her 31 years of marriage as a homemaker and was just attempting to reenter the job market, had received a degree and teaching certificate and although only working part-time at the time of the divorce was capable of obtaining full-time employment but there were not permanent employment prospects in the near future, she met burden under this section by showing that she lacked reasonable property to provide for her reasonable needs and was unable to support herself through employment and award of maintenance was proper; however, such award should not be permanent but only be granted for a period of three years to allow her time to to obtain full-time employment and establish herself financially. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995).

The court did not err in awarding wife three years of maintenance where it took into account the wife’s ability to meet her needs independent of any spousal support and the husband’s ability to meet his own needs while also meeting the wife’s needs. Robinson v. Robinson, 136 Idaho 451, 35 P.3d 268 (2001).

Costs and Attorney’s Fees.

The magistrate court did not abuse its discretion by granting the wife a spousal maintenance award, because she lacked sufficient income to provide for her reasonable needs or to support herself even with full time employment. The court considered the longevity of the parties’ marriage, along with the wife’s limited English skills, age, and lack of employment history. Pelayo v. Pelayo, 154 Idaho 855, 303 P.3d 214 (2013). Costs and Attorney’s Fees.

The trial court may, pursuant to§ 32-704, make awards of costs and attorney fees in post-divorce decree proceedings. The financial resources of the parties must first be considered and then the factors under this section must be considered and applied. Because there is no “community” in post-divorce decree proceedings, community property is not liable for these awards. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Where the trial court found that wife did not have adequate resources to pay her attorney fees incurred in divorce action, where it found that husband had sufficient assets to pay for psychological treatment for the children and that wife did not, where it took notice of the fact that husband had the ability to pay attorney fees incurred in the enforcement of a maintenance order and that wife did not, and, where the court found that husband had the capacity to make previously ordered support payments when it found him in contempt for failure to pay them, the court must make it clear whether those findings were made in the context of this section regarding award of costs and attorney’s fees. Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990).

For a court to award attorney fees under§ 32-704(2), it must consider the financial resources of the parties and the factors in this section. Bell v. Bell, 122 Idaho 520, 835 P.2d 1331 (Ct. App. 1992).

Where trial court did not cite the factors listed in this section as a basis for including wife’s attorney fees as part of the community debt, trial court’s award was reversed and remanded. Smith v. Smith, 124 Idaho 431, 860 P.2d 634 (1993).

Where the magistrate made specific findings of fact in exercising its discretion regarding the award of attorney fees and expert witness fees, he did not abuse his discretion in ordering that each party was responsible for his or her own respective attorney fees and that one party was responsible for the expert fees. McAffee v. McAffee, 132 Idaho 281, 971 P.2d 734 (Ct. App. 1999).

Trial court did not abuse its discretion in awarding attorney fees as the husband earned approximately 84 percent of the parties’ combined income and also owned investment and income-producing property; although the wife was awarded assets of a significant value in the divorce, many of the assets, such as the house and other real property, were not liquid. Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

— Financial Need.

Where magistrate’s decision indicated that he had reviewed the factors set forth in§ 32-704 and in this section, and found that each party had sufficient property and employment to provide for his or her reasonable needs, he did not abuse his discretion in denying attorney fees to mother pursuant to§ 32-704. Jensen v. Jensen, 128 Idaho 600, 917 P.2d 757 (1996).

The magistrate did not abuse its discretion in awarding attorney fees pursuant to§ 32-704(3) where the magistrate found that a substantial disparity existed between the incomes of the parties, that the wife was incapable of paying her own attorney fees, and that the husband could afford to pay those fees for her, and these findings were supported by substantial and competent evidence contained in the record. Perez v. Perez, 134 Idaho 555, 6 P.3d 411 (Ct. App. 2000). Where there was adequate evidence presented to demonstrate a disparity in incomes relating to the parties’ abilities to carry on an appeal of a child custody award, the magistrate judge was within his discretion in ordering the father to pay a portion of the mother’s attorney fees. The mother was not able to make ends meet and pay her attorney fees at the same time. The magistrate erred in making it an open-ended award without any determination about what a reasonable attorney fee would be. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

— Not Appropriate.

In a proceeding to modify a divorce decree, where it was determined that the defenses of the party objecting to the proposed modification were not pursued or defended frivolously, unreasonably or without foundation and where the magistrate’s decision did not apply the factors set forth in this section, the magistrate’s decision to award attorney fees was in error and could not be upheld. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

— Not Awarded.

Where the trial court found that wife was able to support herself through employment and she was underemployed and where husband did not have the ability to pay wife’s attorney fees because he was supporting another family and would be paying increased child support, the trial court did not abuse its discretion by refusing to award attorney fees to wife. Ireland v. Ireland, 123 Idaho 955, 855 P.2d 40 (1993), overruled on other grounds, Zenner v. Holcomb, 147 Idaho 444, 210 P.3d 552 (2009).

Discharge Under Bankruptcy Code.

Award in divorce proceeding of amount of money as “equitable restitution” as compensation for ex-wife’s support of ex-husband during medical school was not in the nature of support under Bankruptcy Code, 11 U.S.C. § 523(a)(5), and was therefore dischargeable. Hainline v. Neal, 179 Bankr. 234 (Bankr. D. Idaho 1995).

Educational Expenses.

Although the spousal maintenance provisions of this section do not contemplate burdening the husband with unlimited schooling expenses for such purposes as cultural refinement or excessively expensive curricula, this section does contemplate that there are situations where initial higher spousal support levels are justified for retraining purposes where such training would tend to facilitate the achievement of enhanced earning capacity and early return to economic self-sufficiency. Shurtliff v. Shurtliff, 112 Idaho 1031, 739 P.2d 330 (1987).

Failure to Qualify.

Since wife did not qualify under this section or§ 32-704 because there was no showing of fault, lack of assets or inability to support herself by employment, magistrate court was correct in treating the $1,000 monthly payment to the wife as a prejudgment distribution of a portion of the community property which would be awarded to the wife, and offset those distributions against the final award. Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

Fault.

Although a showing of fault is required for an award of temporary maintenance under§ 32-704(1), requiring a showing made in conformity with this section, the trial court need only consider the factors set forth in this section in considering whether to award costs and attorney’s fees to a party in a divorce action. Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990). An award of maintenance requires initially a finding by the court that the party being charged with maintenance is at fault and the party seeking maintenance is an innocent spouse, to be followed by consideration of the need of the party seeking maintenance. Marmon v. Marmon, 121 Idaho 480, 825 P.2d 1136 (Ct. App. 1992).

Prior to the amendment of this section in 1990, the fault of the other party was a prerequisite to an award of maintenance to be applied retroactively; the 1990 amendments were meant to eliminate fault as a prerequisite, relegating it to one of many factors to be considered. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995).

Findings Upheld.

Even though the magistrate judge did not specify how he calculated the duration and the amount of spousal maintenance award, the judge’s decision was affirmed because the record contained substantial and competent evidence to support the judge’s findings as to duration and the amount of the award. Wilson v. Wilson, 131 Idaho 533, 960 P.2d 1262 (1998).

Magistrate judge’s award of spousal support to a former wife for twelve years was supported by substantial evidence, in light of: (1) the dramatically different earning capacity of the husband, calculated to 25 times that of the wife; (2) the wife’s future inability to support herself when she had a progressive disability; and (3) the parties’ monthly expenses. The community property awarded to the wife did not render the amount of spousal support excessive because nothing required the wife to exhaust her assets before an award of maintenance was appropriate. Stewart v. Stewart, 143 Idaho 673, 152 P.3d 544 (2007).

In General.

Where an appeal in a divorce case is brought frivolously and without foundation, an appellate court may award fees under§ 12-121. In such a case, the amount awarded is fixed by reference to the Idaho Rules of Civil Procedure, which enables the judge to consider the factors listed in this section and incorporated by reference into§ 32-704(2). In this way§ 12-121 plays a role in divorce cases without unduly encroaching upon the financial assistance scheme contemplated by§ 32-704(2). Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Section 32-704(2) did not intend the wholesale incorporation of every word of this section. Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990).

Magistrate did not err in denying a wife’s request for spousal maintenance, where the record supported the magistrate’s conclusion that the wife had sufficient property to provide for her reasonable needs and that she would be able to support herself once she obtained her nursing certification. Moffett v. Moffett, 151 Idaho 90, 253 P.3d 764 (Ct. App. 2011).

While there are legal differences between an alimony obligation created by court order and a support agreement created by a separate agreement between the divorcing parties, those differences do not remove a judgment to enforce the support agreement from the purview of Idaho’s domestic relations law. Kesting v. Kesting, 160 Idaho 214, 370 P.3d 729 (2016).

Operation of 1990 Amendment.

Restitution.

This section was revised in 1990 to remove fault as a requirement for the award of alimony and to denote, as the primary basis for alimony awards, the need of one spouse and the ability of the other spouse to pay. However, unless the terms of a statute show a clear legislative intent that it should be applied retroactively, a statute should have a prospective operation only. Marmon v. Marmon, 121 Idaho 480, 825 P.2d 1136 (Ct. App. 1992). Restitution.

By including restitution as one of the factors on which to base the maintenance order, the magistrate exceeded his authority under former subsection (2). Campbell v. Campbell, 120 Idaho 394, 816 P.2d 350 (Ct. App. 1991) (decision prior to 1990 amendment).

Spouse’s Retirement.

While there is nothing in this section that permits a trial court to consider a spouse’s retirement needs when deciding whether to award maintenance; it was harmless error for the court to do so, because the remaining portions of the court’s rationale, the lack of sufficient property and inability of wife to support herself through employment, was sufficient in itself to grant a temporary maintenance order. Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019).

Standard of Review.

Subsection (2) of this section does not indicate that the trial court has more discretion to determine the amount of a spousal maintenance award than it does to determine the duration of the award; therefore, the substantial and competent evidence standard of review must be applied to both the amount of an award and the duration of an award. Mulch v. Mulch, 125 Idaho 93, 867 P.2d 967 (1994).

Statement of Factors Considered.

Trial judges in divorce cases should state reasons for their decisions on disputed child support and attorney fee issues, unless those reasons are otherwise obvious from the record; the statement need not be lengthy and it may only consist of brief remarks in open court. But regardless of form, the statement at a minimum should note the existence of the legislative guidelines and should identify those factors which the judge has weighed in arriving at his decision. Bailey v. Bailey, 107 Idaho 324, 689 P.2d 216 (Ct. App. 1984).

Under§ 32-704 the court may order a party to pay a reasonable amount for attorney fees if it reviews the financial resources of the parties and the factors set forth in this section; but, in order to make the award under§ 32-704, the court must consider and cite factors listed in this section in its decision and where magistrate failed to identify any statute or contractual provision on which an award of attorney fees was based, an award of fees was not proper under these sections. Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995).

When awarding attorney fees under§ 32-704, a trial court must make specific findings on the factors listed in this section to justify granting a motion for attorney fees; similarly, a trial court must also apply the same requirements and consider the same factors when denying a motion for attorney fees. Antill v. Antill, 127 Idaho 954, 908 P.2d 1261 (Ct. App. 1996).

Wife Not Entitled to Maintenance.

In a support modification case, while further explanation may have been helpful to understand a magistrate’s decision to award a former wife attorney fees, the magistrate met the minimum statutory requirements for awarding attorney fees; it considered and cited the statutory factors listed in its decision. Moreover, the record supported a finding of a disparity in income, since it contained a document entitled “Affidavit Verifying Income” that listed the former husband’s annual income as $72,000 and the former wife’s annual income as $36,750. Davies v. Davies, 160 Idaho 74, 368 P.3d 1017 (Ct. App. 2016). Wife Not Entitled to Maintenance.

In a divorce action, the magistrate did not abuse his discretion in failing to award the wife continuing separate maintenance, because the wife could meet her monthly expenses through employment in conjunction with her share of the husband’s retirement plan and the equity in her house. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

Decisions Under Prior Law

Constitutionality.

Although former§ 32-706, insofar as it authorized alimony solely for wives, was unconstitutional, the proper remedy for the constitutional defect was not to nullify the statute entirely, but rather to extend to husbands the right to receive alimony when the other requirements of the statute were satisfied; therefore, a wife’s claim to alimony based on the then existing§ 32-706 was not barred on grounds that the statute unconstitutionally denied equal protection to husbands. Neveau v. Neveau, 103 Idaho 707, 652 P.2d 655 (Ct. App. 1982).

Former§ 32-706, which allowed awards of alimony to wives only, clearly violated the equal protection clauses of both the Idaho Constitution and the United States Constitution. However, since it was apparent that the legislature would have intended that the benefits of the alimony statute be extended to the excluded class, husbands, rather than taken from the benefitted class, wives, the supreme court would give effect to that legislative intent by neutrally extending the benefits of alimony to needy husbands rather than voiding former§ 32-706 in its entirety. Murphey v. Murphey, 103 Idaho 720, 653 P.2d 441 (1982).

Discretion of Court.

While allowance of alimony is matter of discretion with trial court, yet such discretion is reviewable on appeal, and where it has been abused, alimony will be allowed by appellate court. Enders v. Enders, 36 Idaho 481, 211 P. 549 (1922).

In determining amount of permanent alimony to be awarded, no fixed rule can be applied. Amount is largely in discretion of trial court and will not be disturbed save in cases of manifest abuse. Smiley v. Smiley, 46 Idaho 588, 269 P. 589 (1928). The allowance of alimony and the amount thereof are, in the first instance, committed to the trial court’s discretion and will not be interfered with on appeal in the absence of a manifest abuse thereof. Malone v. Malone, 64 Idaho 252, 130 P.2d 674 (1942).

Alimony is not a vested right, being designed solely for support of the wife; it is granted at the court’s discretion and is subject to modification. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

Allowance of alimony and the amount thereof are, in the first instance, committed to the trial court’s discretion. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

Whether alimony is to be granted or not under this section is a matter first committed to the discretion of the trial court and will not be interfered with on appeal in the absence of a manifest abuse thereof. Losee v. Losee, 91 Idaho 77, 415 P.2d 720 (1966).

It was not an abuse of discretion to deny alimony to the wife, who was trained as a secretary and bookkeeper and capable of working to support herself and to whom the court awarded $53,000 of $77,000 community property. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967).

An award of alimony to a divorced wife in such amount as the trial court deems just is proper whenever the husband is not free from fault, and the wife’s fault, though possibly sufficient to allow a divorce in favor of the husband, is not so grievous as to mandate a denial of alimony. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

The awarding of alimony where a divorce is granted for the fault of the husband is, in the first instance, in the discretion of the district court, and such discretion will not be interfered with on appeal in the absence of manifest abuse. Glavin v. Glavin, 94 Idaho 813, 498 P.2d 1286 (1974).

The trial court abused its discretion in awarding to the plaintiff wife $210,000 in alimony over a nine-year period, where there was no showing of need in that the wife had already been awarded over $300,000 worth of community property and the evidence also showed that she was a college graduate capable of obtaining employment. Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

In General.

In this state, award of alimony is not considered as an award of community property, the two being separate and distinct. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

Manner of Payment.

Permanent alimony may be awarded either in lump sum or in stipulated amounts, payable at fixed dates. Enders v. Enders, 36 Idaho 481, 211 P. 549 (1922).

Modification.

Power over subject matter of alimony is not exhausted by entry of original order and decree of divorce, but is continued for the purpose, at any time, of making such alterations as may appear to the court, in the exercise of its judicial discretion, reasonable and proper. Humbird v. Humbird, 42 Idaho 29, 243 P. 827 (1926); McHan v. McHan, 59 Idaho 496, 84 P.2d 984 (1938). In fixing alimony, court may regard earnings of husband and may subsequently increase or reduce amount. Humbird v. Humbird, 42 Idaho 29, 243 P. 827 (1926).

Payment of $200 per month alimony should continue until such time as it is shown to the court that appellant is no longer in need of alimony or that circumstances and conditions of the parties warrant a modification. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

The authority to modify under this section cannot be extended to modification of an agreement of the parties; for only when there has been a merger of the agreement into the decree itself does the court have the authority to make such a modification, and any modification is then of the court’s order and not of the agreement. Turner v. Turner, 90 Idaho 308, 410 P.2d 648 (1966).

Where decree of divorce provided for monthly payments to wife “for the rest of her natural life,” the words “for the rest of her natural life” must be regarded as surplusage because the decree may be modified. Gortsema v. Gortsema, 92 Idaho 684, 448 P.2d 777 (1968).

Where the decree contains no provision for an award of alimony, no modification of decree can be made once the time for appeal has elapsed. Perovitz v. Perovitz, 94 Idaho 453, 490 P.2d 320 (1971).

Under the alimony provision of former§ 32-706 (repealed) that “the court may, from time to time, modify its orders in these respects,” Idaho case law had long held that when the original divorce decree contained no provision for an award of alimony, a court had no authority to subsequently modify that decree to provide for an award of alimony. Mercer v. Mercer, 102 Idaho 816, 641 P.2d 1003 (Ct. App. 1982).

Where there was no formal provision in a divorce decree retaining jurisdiction, the court did not have the jurisdiction to modify fixed-term spousal support after the expiration of the term. Mercer v. Mercer, 102 Idaho 816, 641 P.2d 1003 (Ct. App. 1982).

A trial court ordinarily was without power to modify an alimony award beyond the duration of the time fixed by the original decree for payment of alimony, provided that those payments had been made and there had been no appeal from the final decree which declared the obligation, and fixed its limited duration. Mercer v. Mercer, 102 Idaho 816, 641 P.2d 1003 (Ct. App. 1982).

When an original divorce decree providing for alimony was modified by an order terminating alimony payments and no appeal was taken from that order, there was no residual authority in the trial court to later on allow alimony; there simply was no longer an action pending between the parties and hence the parties were no longer before the court. Mercer v. Mercer, 102 Idaho 816, 641 P.2d 1003 (Ct. App. 1982).

Res Judicata.

Where a previous order terminating alimony payments has become final, the time for amendment having expired with no appeal taken, trial court was without power to modify it, having no residual authority to do so; therefore, trial court correctly granted a motion to dismiss a motion to modify. Jordan v. Jordan, 87 Idaho 432, 394 P.2d 163 (1964).

Review.

Salary Increase.

When a major portion of an award is found to have been made erroneously, it is only equitable that the trial court review the disposition of the community property and the allowance of the wife’s support so that ultimate disposition of the property is fairly and equitably made with adequate allowance for the wife’s support. Stahl v. Stahl, 91 Idaho 794, 430 P.2d 685 (1967). Salary Increase.

A salary increase of a divorced husband, to become effective approximately 3 ½ months after the trial, should have been considered by the court in awarding alimony and child support. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

Sufficiency of Alimony.

In suit by husband, a resident of Canada, against wife, a resident of Michigan, for divorce based on five years’ separation, where evidence showed that wife helped husband to develop his business and where husband had a business valued at $27,000 and wife lived in a “shack” and had borrowed $1,400 to come to Idaho to defend proceeding, an award of alimony for $2,000 was insufficient, and supreme court increased award to $8,000. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Alimony is not a vested right but is designed solely for the support of the wife; it is granted at the court’s discretion and is subject to modification. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

Under the circumstances, the sum of $200.00 per month as alimony was adequate; however, it was error to limit the alimony payments to a period of one year, as such termination would necessarily rest on speculation or conjecture and was unwarranted. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

In awarding alimony, the court should give due consideration to the correlative needs and abilities of both parties. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

The trial court did not err in denying wife an award of permanent alimony, where the trial court had given due consideration to the needs and abilities of the parties and the equity of the situation. Mifflin v. Mifflin, 97 Idaho 895, 556 P.2d 854 (1976).

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

ALR.

Court’s establishment of trust to secure alimony or child support in divorce proceedings. 3 A.L.R.3d 1170.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments, or child visitation or custody matters. 38 A.L.R.5th 69.

Spouse’s acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom. 29 A.L.R.3d 1184.

Annulment of later marriage as reviving prior husband’s obligation under alimony decree or separation agreement. 45 A.L.R.3d 1033.

Consideration of tax liability or consequences in determining alimony or property settlement provisions of divorce or separation. 51 A.L.R.3d 461; 9 A.L.R.5th 568.

Retrospective increase in allowance for alimony, separate maintenance, or support. 52 A.L.R.3d 156.

Effect of remarriage of spouses to each other on permanent alimony provisions in final divorce decree. 52 A.L.R.3d 1334. Power of court to modify decree for alimony or support to spouse which was based on agreement of parties. 61 A.L.R.3d 520.

Right to allowance of permanent alimony in connection with decree of annulment. 81 A.L.R.3d 281.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination. 85 A.L.R.3d 940.

Adulterous wife’s right to permanent alimony. 86 A.L.R.3d 97.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce. 86 A.L.R.3d 1116.

Divorced woman’s subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree. 98 A.L.R.3d 453.

Spouse’s professional degree or license as marital property for purposes of alimony, support, or property settlement. 4 A.L.R.4th 1294.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support. 19 A.L.R.4th 830.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined. 27 A.L.R.4th 1038.

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce. 28 A.L.R.4th 786.

Reconciliation as affecting decree for limited divorce, separation, alimony, separate maintenance, or spousal support. 36 A.L.R.4th 502.

Withholding visitation rights for failure to make alimony or support payments. 65 A.L.R.4th 1155.

Propriety of equalizing income of spouses through alimony awards. 102 A.L.R.5th 395.

Prior Laws.

Former§ 32-706, which comprised 1875, p. 639, § 7; R.S., § 2474; reen. R.C. & C.L., § 2664; C.S., § 4644; I.C.A.,§ 31-706; am. 1945, ch. 125, § 2, p. 191, was repealed by S.L. 1980, ch. 378, § 1.

Amendments.

This section was amended by two 2000 acts — ch. 107, § 1 and ch. 412, § 1, both effective July 1, 2000, which do not conflict and have been compiled together.

The 2000 amendment, by ch. 107, added subsection (5).

The 2000 amendment, by ch. 412, § 1, in subsection (5), added the last sentence.

The 2008 amendment, by ch. 328, added “as defined in section 32-1214B, Idaho Code” at the end of paragraphs (1)(e) and (4)(e).

The 2020 amendment, by ch. 271, added subsection (6).

Fringe Benefits.

Health insurance premiums provided by a father’s employer do not constitute a fringe benefit for the purpose of calculating the father’s income under the Idaho Child Support Guidelines, Idaho Rules of Family Procedure 126 F.2. Valentine v. Valentine, 162 Idaho 86, 394 P.3d 129 (Ct. App. 2017).

Imputed Income.

The magistrate correctly imputed monthly income to wife as a voluntarily unemployed parent pursuant to the child support guidelines. Kornfield v. Kornfield, 134 Idaho 383, 3 P.3d 61 (Ct. App. 2000).

Incarcerated Parent.

Imposing upon incarcerated parent a continuing support obligation, beyond his ability to pay, does not help the child; therefore, the parent is not liable for child support payments while incarcerated on an unrelated criminal conviction. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Income Tax Dependency Exemption.

Although it may be debated whether child support levels should be fixed by reference to factors other than need and ability to pay, it is permissible under federal law and this section to take the value of the income tax dependency exemption into account, thereby indirectly allocating its economic value between the parties. Rohr v. Rohr, 118 Idaho 698, 800 P.2d 94 (Ct. App. 1989).

A magistrate court may, and is authorized by the current version of this section to, take account of the value of the income tax dependency exemption, and allocate its effect when it makes an initial or modified child support order. Nonetheless, the authority to require execution of a tax exemption waiver is an alternative which the divorce courts of this state should have available to utilize under the proper circumstances. Rohr v. Rohr, 118 Idaho 689, 800 P.2d 85 (1990).

Modification.

Determining whether the child support provisions of a divorce decree should be modified essentially is a two-step process; first, the trial court must determine whether a substantial, material change of circumstances has occurred warranting a modification; second, the trial court must determine the amount of the modification, considering all relevant factors, especially those enumerated in this section. Howard v. Mecham, 117 Idaho 542, 789 P.2d 538 (Ct. App. 1990).

Magistrate may not modify child support where there was no basis for the modification other than that it appeared to conform with certain proposed guidelines that were not in effect at the time of the proposed modification and which, in fact, were not eventually adopted. Howard v. Mecham, 117 Idaho 542, 789 P.2d 538 (Ct. App. 1990). Trial court abused its discretion in determining the amount of increase in child support ordered and in requiring such payments to be made retroactively from the date of filing of motion to modify the child support award, since its order was based on figure used by parent requesting a change in custody based on expenses that would come about as a result of change in custody. No change in custody occurred and, therefore, such figure was irrelevant and did not provide a rational basis for the trial court’s decision. Levin v. Levin, 122 Idaho 583, 836 P.2d 529 (1992).

Where magistrate’s order finding a material, permanent and substantial change in circumstances and increasing child support payments was based partially upon its erroneous collateral attack upon the prior court’s support order, the magistrate’s finding was vacated and the court was directed to reconsider the issue of whether there was a material, permanent and substantial change in the circumstances relating to child support. Levin v. Levin, 122 Idaho 583, 836 P.2d 529 (1992).

A person seeking modification of a divorce decree provision for child support must show a substantial and material change of circumstances occurring after the last order affecting the support obligation. When presented with such a request, the trial court must first determine whether a substantial, material change of circumstances has occurred warranting a modification. If a modification is found to be justified, the trial court must then determine the amount of the modification, considering all relevant factors, especially those enumerated in this section. Rohr v. Rohr, 126 Idaho 1, 878 P.2d 175 (Ct. App. 1994).

Where there was substantial, competent evidence in the record to support the magistrate’s finding that a father’s reduced gross income combined with the birth of another child by his current wife and that child’s need for support constituted a permanent, material, and substantial change of circumstances since the last order modifying the divorce decree, there was no error in the magistrate’s granting the father’s petition for modification, despite the fact that the parties’ divorce decree was contemporaneously the subject of an appeal before the Idaho Court of Appeals. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

Although there was evidence of material and substantial change of circumstances warranting the magistrate’s modification of the divorce decree, where the magistrate did not provide the methodology or calculations it used in concluding the father’s monthly gross income and his total annual income, there was no substantial and competent evidence to support his findings, thus on appeal the calculations were reversed. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

Magistrate did not err in correcting the father’s child support obligations where this section listed relevant factors that a court had to consider when determining the amount of child support either parent owed, and the actual tax benefit recognized by the part claiming the federal child dependency exemption was one such factor. Silsby v. Kepner, 140 Idaho 412, 95 P.3d 30 (Ct. App. 2003).

District court erred in affirming a magistrate’s denial of a mother’s motion to modify child support because, while the parties were represented by counsel when they entered into a child support agreement, the original judgment called for a significant, unsubstantiated deviation from the Idaho child support guidelines and no facts were ever elicited to rebut the statutory or guidelines presumptions and no reasons were given as to why the guidelines were not followed. The original support amount was a gross and substantial deviation from the guidelines and constituted a material change itself. Garner v. Garner, 158 Idaho 932, 354 P.3d 494 (2015).

New Marital Community Income.

While considering a father’s petition for modification of child support, a district court and a magistrate were not required to consider a mother’s interest in her new husband’s income in computing her share of a child support obligation, as no compelling reason for such consideration existed. The disparity between the father’s income and that of the mother’s new marital community was insufficient, in itself, to constitute a compelling circumstance. Harris v. Carter, 146 Idaho 22, 189 P.3d 484 (Ct. App. 2008).

Reinstatement.

Granting of the father’s motion to dismiss the mother’s request for the reinstatement of child support was improper pursuant to subsection (2) because there were no grounds to impose a requirement that a request for support under subsection (2) be initiated before the subject child reached 18. Busse v. Busse, 141 Idaho 566, 113 P.3d 224 (2005).

Statement of Factors Considered.

Trial judges in divorce cases should state reasons for their decisions on disputed child support and attorney fee issues, unless those reasons are otherwise obvious from the record; the statement need not be lengthy and it may only consist of brief remarks in open court. But regardless of form, the statement at a minimum should note the existence of the legislative guidelines and should identify those factors which the judge has weighed in arriving at his decision. Bailey v. Bailey, 107 Idaho 324, 689 P.2d 216 (Ct. App. 1984).

Magistrate erred in applying a cap rather than an evidence driven standard in determining whether any additional support above the combined guidelines income figure of $70,000.00 was appropriate in action involving modification of child support; although magistrate increased father’s child support under Idaho child support guidelines (guidelines) he inappropriately shifted the burden of proof to mother regarding factors set forth under guidelines instead of analyzing the income of the parties and the requirements of the children. Jensen v. Jensen, 128 Idaho 600, 917 P.2d 757 (1996).

Support After Majority.

The court cannot compel the husband to support children after they attain their majority. Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (1919).

The trial court erred in believing the provisions of§ 7-1121 justified the award of child support until age 21 if the child was pursuing his education, because the trial court’s expansion by analogy of the provisions of§ 7-1121 conflicts with the pre-1991 version of this section, where the minor child became 18 years of age in June of 1990 and the 1990 amendment to this section that provided for continuing support did not become effective until July of 1990. Walborn v. Walborn, 120 Idaho 494, 817 P.2d 160 (1991).

A provision in plaintiff’s settlement agreement requiring plaintiff to pay for half of his children’s college education was held to be a provision requiring post-majority child support and due to the merger of the settlement agreement into the divorce decree, the agreement, including that of post-majority child support potentially beyond the requirement of subsection (2). of this section, was no longer enforceable as a separate contractual obligation and ex-wife could not enforce the agreement through an action on the divorce decree. Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995).

Cited Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980); Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982); Franks v. Franks, 119 Idaho 997, 812 P.2d 304 (Ct. App. 1991); Muthersbaugh v. Neumann, 133 Idaho 677, 991 P.2d 865 (Ct. App. 1999). Decisions Under Prior Law

Children by Former Marriage.

Court could make allowance for “children of the marriage,” but former statute made no provision for maintenance and support of children of wife by former marriage. Smiley v. Smiley, 46 Idaho 588, 269 P. 589 (1928).

Contempt of Court.

The issue of defendant’s contempt for failure to support child was an issue to be decided in contempt proceedings and plaintiff’s contention in the premises was without merit, she merely alleging him to be presently in contempt, such allegation not to be substituted for the procedural requisites of the statute on contempt, especially since alleged contempt was not one committed before the court. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Discretion of Court.

The amount of money awarded to a wife in a divorce action for child support and maintenance rests in the sound discretion of the trial court. Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).

Trial court did not abuse its discretion in failing to award wife alimony and child support in divorce decree in favor of husband, where wife did not claim or offer any evidence of any requirement for additional support money, and husband was making support payments since his arrest. Finnegan v. Finnegan, 76 Idaho 500, 285 P.2d 488 (1955).

Establishment of Trust.

The court is authorized to make provision for the support and education of the children of the marriage and in so doing, to subject the community property to that purpose and to require security therefor and enforce the same by receiver or by any other remedy applicable to the case. The establishment of a trust of community property was an applicable remedy and a method of subjecting that property to the support and education of the children, and was within the jurisdiction of the court. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

Modification of Allowance.

There was no abuse of discretion by trial court in denying petition to modify divorce decree so as to increase support allowed for minor child where petition failed to allege a material change in condition of the parties. Fish v. Fish, 67 Idaho 78, 170 P.2d 802 (1946).

The fact that the child is a minor is not the sole criterion of a court’s power or jurisdiction to modify the child maintenance obligations of the original decree; rather, the fact of dependency of the child constitutes the governing criterion to be considered in imposing the obligation, and thereafter in continuing, modifying or terminating such obligation. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963). An application for modification of a decree awarding a child support upon the ground of a material permanent change in the circumstances of the parties since the entry of the decree, is addressed to the sound judicial discretion of the trial court. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

The evidence in regard to the age, health and self-sufficiency of the son of the parties and as regards defendant-father’s bad physical condition and his reduced earnings was competent and substantial and sufficient to sustain the trial court’s order of modification. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

The authority to modify cannot be extended to modification of an agreement of the parties; for only when there has been a merger of the agreement into the decree itself does the court have the authority to make such a modification, and any modification is then of the court’s order and not of the agreement. Turner v. Turner, 90 Idaho 308, 410 P.2d 648 (1966).

Salary Increase.

A salary increase of a divorced husband, to become effective approximately 3 ½ months after the trial, should have been considered by the court in awarding alimony and child support. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

Statement of Factors Considered.

Trial judges in divorce cases should state reasons for their decisions on disputed child support and attorney fee issues, unless those reasons are otherwise obvious from the record; the statement need not be lengthy and it may only consist of brief remarks in open court. But regardless of form, the statement at a minimum should note the existence of the legislative guidelines and should identify those factors which the judge has weighed in arriving at his decision. Bailey v. Bailey, 107 Idaho 324, 689 P.2d 216 (Ct. App. 1984).

ALR.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child. 7 A.L.R.3d 1096.

Spouse’s acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom. 29 A.L.R.3d 1184.

Power of divorce court, after child attained majority, to enforce by contempt proceedings payment of arrears of child support. 32 A.L.R.3d 888.

Income of child from other source as excusing parent’s compliance with support provisions of divorce decree. 39 A.L.R.3d 1292.

Right to credit on accrued support payments for time child is in father’s custody or for other voluntary expenditures. 47 A.L.R.3d 1031.

Wife’s possession of independent means as affecting her right to child support pendente lite. 60 A.L.R.3d 832. Father’s liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support. 91 A.L.R.3d 530.

Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child’s college education. 99 A.L.R.3d 322.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree. 100 A.L.R.3d 1129.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support. 19 A.L.R.4th 830.

Excessiveness or adequacy of money awarded as child support. 27 A.L.R.4th 864.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined. 27 A.L.R.4th 1038.

Withholding visitation rights for failure to make alimony or support payments. 65 A.L.R.4th 1155.

Death of obligor parent as affecting decree for support of child. 14 A.L.R.5th 557.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child. 34 A.L.R.5th 447.

Basis for imputing income for purpose of determining child support where obligor spouse is voluntarily unemployed or underemployed. 76 A.L.R.5th 191.

Right to credit on child support arrearages for time parties resided together after separation or divorce. 104 A.L.R.5th 605.

Right to credit against child support arrearages for time child spent in custody of noncustodial parent, other than for visitation or under court order, without custodial parent’s approval. 108 A.L.R.5th 359.

Right to credit against child support arrearages for time children spent in custody of noncustodial parent pursuant to visitation or court order. 118 A.L.R.5th 385.

Right to credit on child-support arrearages for money given directly to child. 119 A.L.R.5th 445.

Right to credit against child support arrearages for time child lived with noncustodial parent, other than for visitation or by court order, with approval of custodial parent. 120 A.L.R.5th 229.

Right to credit on child support for contributions to housing costs, utility bills, and other alleged household necessities made for child’s benefit while child is not living with obligor parent. 123 A.L.R.5th 565.

Right to credit on child support arrearages for gifts to child. 124 A.L.R.5th 441.

Right to credit on child support for health insurance, medical, dental, and orthodontic expenses paid for child’s benefit while child is not living with obligor parent. 1 A.L.R.6th 493.

Right to credit on child support for contributions to educational expenses of child while child is not living with obligor parent. 2 A.L.R.6th 439.

Right to credit on child support for contributions to travel expenses of child while child is not living with obligor parent. 3 A.L.R.6th 641.

Right to credit on child support for continued payments to custodial parent for child who has reached majority or otherwise become emancipated. 4 A.L.R.6th 531.

Validity, construction, and application of Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 USCS § 1738B — State cases. 18 A.L.R.6th 97. Validity, construction, and application of state statutes providing for revocation of driver’s license for failure to pay child support. 30 A.L.R.6th 483.

Compiler’s Notes.

This section, which comprised I.C.,§ 32-706A, as added by 1989, ch. 411, § 2, p. 1003; am. 1992, ch. 142, § 2, p. 435; am. 1993, ch. 160, § 1, p. 409; am. 1994, ch. 236, § 1, p. 745; am. 1995, ch. 258, § 1, p. 841; am. 1997, ch. 34, § 1, p. 61; am. 1999, ch. 149, § 1, p. 420, was repealed by S.L. 2000, ch. 107, § 2, effective July 1, 2000.

Award.

Trial court should have required security of husband in making an award to wife for alimony where husband’s property was located in Canada and there was no community property. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954).

Property Liable.

Where a court requires a husband to provide support for a wife it must resort first, to the community property and then to the separate property of the husband, and where the wife does not have sufficient separate estate and there is insufficient community property to provide for her support, the separate property of the husband may be applied thereto. Martin v. Soden, 81 Idaho 274, 340 P.2d 848 (1959) (Decision prior to 1980 amendment of§ 32-708).

Successors in Interest.

Where present owners of a tract of land were not strangers but were successors in estate and privies of the divorced parties, they were bound by the decree awarding the husband’s property to the wife in trust for the use and benefit of the children to the same extent and under the same rules as applicable to divorced parties. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

Support and Education of Children.

The appointment of a trustee and the subjection of the community property to his control under the direction of the court was justified where both parties were found unfit for the custody of the children and financially irresponsible and it was within the power of the court to subject the property to further or additional allowances for the support and education of the children in the future as their needs might require. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

Attorney Fees.

Where wife has sufficient separate estate to enable her to defend the suit and there is no community property, court will not resort to the separate estate of the husband for attorney’s fee and suit money. McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293 (1934).

The rule that pre-divorce attorney fees must be treated as community debts has been statutorily set aside. Jensen v. Jensen, 124 Idaho 162, 857 P.2d 641 (1993).

Order of Liability of Property.

If there is no community property, the trial court must look to separate property of husband in making an award for alimony. Jolliffe v. Jolliffe, 76 Idaho 95, 278 P.2d 200 (1954) (Decision prior to 1980 amendment).

Where a court requires a husband to provide support for a wife it must resort first, to the community property and then to the separate property of the husband, and where the wife does not have sufficient separate estate and there is insufficient community property to provide for her support, the separate property of the husband may be applied thereto. Martin v. Soden, 81 Idaho 274, 340 P.2d 848 (1959) (Decision prior to 1980 amendment).

Inasmuch as this section mandated that a court resort first to community property in making allowances for wife’s attorney fees and temporary support, the trial court was in error in setting off the community interest in a separate property residence against the husband’s previously decreed temporary support, attorney fee obligations and community debts. Mifflin v. Mifflin, 97 Idaho 895, 556 P.2d 854 (1976).

Satisfaction Prior to Distribution.

The husband’s payment of all community obligations and approximately $5,000 for the wife’s temporary support and attorney’s fees should be satisfied first from community property before an order for the equitable division of community property. Tolman v. Tolman, 92 Idaho 108, 437 P.2d 624 (1968).

Support and Education of Children.

In a divorce action, it was proper for the district court to allow delinquent temporary child support to be used as an offset against the community property before distribution. Fisher v. Fisher, 104 Idaho 68, 656 P.2d 129 (1982). Support and Education of Children.

Where necessary in order to provide support and education for the children the court may resort to the separate property of the husband and of the wife for that purpose. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

ALR.

Spouse’s cause of action for negligent personal injury, or proceeds therefrom, as separate or community property. 80 A.L.R.5th 533.

Prior Laws.

Former§ 32-709, which comprised R.S., § 2477; reen. R.C. & C.L., § 2667; C.S., § 4647; I.C.A.,§ 31-709, was repealed by S.L. 1980, ch. 378, § 1.

Appeal.

Since the propriety of magistrate’s order denying wife’s motion for summary judgment regarding modification of spousal support was the only issue presented on appeal to the district court, and because the correctness of that order was not a proper subject for review on appeal, the district court did not err in dismissing the appeal. Keeler v. Keeler, 124 Idaho 407, 860 P.2d 23 (Ct. App. 1993).

Bad Faith Worsening of Financial Position.

If a party in bad faith voluntarily worsens his financial position, he cannot obtain a modification of a decree under which he is required to pay child support. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988). Magistrate properly held that a father was voluntarily underemployed when he sought a reduction in his child support obligation based on a substantial change in circumstances because the father’s decision to leave a well-paying job in California where he had earned significant seniority coincided with the scheduled increase in his child support obligation. Aguiar v. Aguiar, 142 Idaho 331, 127 P.3d 234 (Ct. App. 2005).

Continuance.

Where wife was granted maintenance for a period of three years in order to allow her time to obtain full employment and establish herself financially, she could under this section seek an extension of the three-year period, but would be required to show that a substantial and material change in circumstances had occurred in order to justify such a continuance. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995).

District court sitting in its appellate capacity could not impose a limitation on extensions of award of maintenance as any such extension must be determined by the magistrate following a hearing pursuant to this section. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995).

Determining Modification.

Determining whether the child support provisions of a divorce decree should be modified essentially is a two-step process; first, the trial court must determine whether a substantial, material change of circumstances has occurred warranting a modification; second, the trial court must determine the amount of the modification, considering all relevant factors, especially those enumerated in§ 32-706. Howard v. Mecham, 117 Idaho 542, 789 P.2d 538 (Ct. App. 1990).

A person seeking modification of a divorce decree provision for child support must show a substantial and material change of circumstances occurring after the last order affecting the support obligation. When presented with such a request, the trial court must first determine whether a substantial, material change of circumstances has occurred warranting a modification. If a modification is found to be justified, the trial court must then determine the amount of the modification, considering all relevant factors, especially those enumerated in§ 32-706. Rohr v. Rohr, 126 Idaho 1, 878 P.2d 175 (Ct. App. 1994).

Where there was substantial, competent evidence in the record to support the magistrate’s finding that a father’s reduced gross income combined with the birth of another child by his current wife and that child’s need for support constituted a permanent, material, and substantial change of circumstances since the last order modifying the divorce decree, there was no error in the magistrate’s granting the father’s petition for modification, despite the fact that the parties’ divorce decree was contemporaneously the subject of an appeal before the Idaho court of appeals. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

Where a parent filed his petition for modification of his divorce decree, having incurred and paid ongoing expenses for his newborn child, having determined that a substantial and material change of circumstances had occurred since the divorce decree sufficient to warrant modification of the decree, the magistrate should have retroactively applied the child support modification, as of the date on which the petition to modify was filed. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

Effect of Proposed Guidelines.

Magistrate may not modify child support where there was no basis for the modification other than that it appeared to conform with certain proposed guidelines that were not in effect at the time of the proposed modification and which, in fact, were not eventually adopted. Howard v. Mecham, 117 Idaho 542, 789 P.2d 538 (Ct. App. 1990).

Future Adjustments.

If a judge finds that the needs of a child or of a former spouse are likely to change in the future, and that resources to meet the changing needs are likely to be available, the judge may prescribe support schedules containing future adjustments. Brazier v. Brazier, 111 Idaho 692, 726 P.2d 1143 (Ct. App. 1986), overruled on other grounds, Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

Where provision of divorce decree permitting reduction in support payments due to onset of disability was self executing, reduction of spousal support due to payor’s spouse’s disability did not require judicial approval prior to abatement of payments. Although such an automatic future adjustment clause does not inhibit the court’s continuing jurisdiction to modify an award when presented with “a substantial and material change of circumstances,” no such change in circumstances had been asserted and denial of judgment was affirmed. Toyama v. Toyama, 129 Idaho 142, 922 P.2d 1068 (1996).

The purpose of this section is to minimize the number of occasions when divorce decrees must be disturbed. The purpose is well served by providing for automatic future adjustments in payments, even when the factor upon which the automatic adjustment hinges is somewhat uncertain. Keller v. Keller, 130 Idaho 661, 946 P.2d 623 (1997).

Imputed Income.

Child support obligation was modified, where the magistrate refused to impute rental income to the mother, based on a room that she rented in her house, as he found that rental not to be a reliable source of income for the future. Davies v. Davies, 160 Idaho 74, 368 P.3d 1017 (Ct. App. 2016).

Incarcerated Parent.

Where the obligor parent was sentenced to an indeterminate term of eight years in prison, and at the time his motion to modify the decree for child support was filed, he still had more than six years to serve, but since he could be paroled earlier, his motion to modify support decree should not be denied merely because he probably would not be incarcerated for the remainder of his life, therefore, the action was remanded for further consideration by the magistrate. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Should the magistrate reduce an obligor parent’s child support burden during incarceration, he may consider an automatic reinstatement of the former support requirement following release. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Movant in Contempt.

A trial court is without authority to modify a child support order if the movant is in contempt, unless the movant shows that, for reasons beyond his control, purging himself of the contempt is impossible. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

No Retroactive Modification.

Father’s timely post-trial motion to obtain relief from the judgment due to an error of law in applying the child support guidelines made by the magistrate court in its initial decision was not barred by the rule that precluded child support modifications where the obligor parent was in arrears on his child support obligation, because the motion was not a motion to modify under this section, but was a permissible request for the correction of an error of law. Moffett v. Moffett, 151 Idaho 90, 253 P.3d 764 (Ct. App. 2011). No Retroactive Modification.

Since this section prohibits modification of support accruing before date of modification motion court’s refusal to retroactively release the obligor parent from support accruing before the date of his modification motion was correct. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Offset of Attorney Fees.

Where the trial court did not discuss the welfare of the children before offsetting father’s attorney fees against the child support payments and where the record showed mother had two children in need of support and could not provide for them on her own, it was not proper for the trial court to reduce father’s child support payments in order to satisfy an award of attorney fees. Ireland v. Ireland, 123 Idaho 955, 855 P.2d 40 (1993), overruled on other grounds, Zenner v. Holcomb, 147 Idaho 444, 210 P.3d 552 (2009).

Substantial Change in Circumstances.

Where doctor was showing physical and emotional signs of an impending burnout, a substantial and material change had occurred in that plaintiff was no longer physically or emotionally able to continue with his current work schedule of 80-100 hours per week. Keller v. Keller, 130 Idaho 661, 946 P.2d 623 (1997).

Incarceration and the associated possibility of reduction in income for an extended, but nonetheless limited period, is not insufficient in permanence for a court to modify the amount of support required. Instead, the period for which a change in circumstances is anticipated to exist, and its permanence, should be two of the factors to be considered by the trial court in determining whether a change in circumstances is “substantial.” Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

A mutual mistake of fact as to the legal status of a child for whom husband in divorce action had power of attorney but to whom he was neither the natural nor adoptive father, and his mistaken belief that he had a duty to pay support for said child, were not substantial and material changes of circumstances. Gordon v. Gordon, 118 Idaho 804, 800 P.2d 1018 (1990).

The magistrate court’s decision to modify a divorce decree to order wife to pay child support to ex-husband was affirmed because “a showing of a substantial and material change of circumstances” existed where wife, who at the time of the final decree earned no income, was now earning $25,000 per year, was receiving a portion of ex-husband’s military retirement benefits and was remarried to a new husband earning approximately $47,000 per year. Walborn v. Walborn, 120 Idaho 494, 817 P.2d 160 (1991).

— Not Found.

Where magistrate found that a substantial and material change of circumstances had occurred since the original decree was entered which justified increasing plaintiff’s child support obligation under this section as plaintiff had realized a significant increase in his income due to a salary increase in his primary job and the additional salary from a part-time job, there were increased costs of childrearing, and adoption of the Idaho Child Support Guidelines at Idaho R. Civ. P. 6(c)(6) had occurred since the time of the parties’ divorce, the district court did not abuse its discretion in affirming the decision of the magistrate court that plaintiff’s income from his second job should be considered in determining his child support obligation. Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995). — Not Found.

There was not a substantial and material change in circumstances shown at the time wife filed her motion to modify child support where the only issue raised was the increased cost of raising teenaged children and where the trial court found that wife’s difficult financial situation was caused by her own mismanagement and underemployment. Ireland v. Ireland, 123 Idaho 955, 855 P.2d 40 (1993), overruled on other grounds, Zenner v. Holcomb, 147 Idaho 444, 210 P.3d 552 (2009).

Decisions Under Prior Law

Change of Circumstances.

Only substantially changed circumstances and conditions of the parties will warrant a modification of the divorce decree. Daniels v. Daniels, 82 Idaho 201, 351 P.2d 236 (1960).

An application for modification of a decree awarding child support, upon the ground of a material permanent change in the circumstances of the parties since the entry of the decree, is addressed to the sound judicial discretion of the trial court. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Consent Decree.

Consent decrees must conform to the agreement of the parties subject to such inherent powers of the court on matters concerning the welfare of the child and subject to its continued jurisdiction to modify support payments under changed conditions. Fisher v. Fisher, 84 Idaho 303, 371 P.2d 847 (1962).

Duty to Seek Modification.

The court is open at any time to husband after rendition of original decree to seek modification, and where he feels decree is excessive, it is incumbent upon him to apply for modification, not to default and take the chance of showing inability to pay. Lusty v. Lusty, 70 Idaho 382, 219 P.2d 280 (1950), overruled on other grounds, State Dep’t of Health & Welfare v. Slane, 155 Idaho 274, 311 P.3d 286 (2013).

Property Settlement Agreements.

The fact that the property settlement agreement is merged into divorce decree is not alone sufficient to authorize modification of the decree by the court, for only where payments provided for by the agreement are separable from the provisions relative to the division of property or where the payments for support and maintenance are not so integrated that they constitute reciprocal consideration for the division of property can the court modify such agreement. Kimball v. Kimball, 83 Idaho 12, 356 P.2d 919 (1960). Where there is no merger of a property settlement agreement into the divorce decree, the agreement itself governs, and the terms of the agreement being otherwise valid, they are not subject to being rewritten or modified by the court without the consent of both parties. Kimball v. Kimball, 83 Idaho 12, 356 P.2d 919 (1960).

Power of trial court to modify provisions of decrees providing for support and maintenance of wife cannot be extended to modification of an agreement of the parties, for only when there has been a merger of the agreement into the decree itself does the court have authority to make such a modification, and any modification is then of the court’s order and not of the agreement. Kimball v. Kimball, 83 Idaho 12, 356 P.2d 919 (1960).

Where parties in property settlement agreement provided that in consideration of property transfer husband promised to pay wife $2500 immediately and $150 a month thereafter, they clearly intended that the provision for monthly payments be an inseparable, indivisible and integral part of such agreement, and the trial court had no power to modify monthly payment provision without parties’ expressed consent even though the agreement had been incorporated into divorce decree. Kimball v. Kimball, 83 Idaho 12, 356 P.2d 919 (1960).

The general rule that a court has no authority to modify a property settlement agreement that has been merely ratified or approved by the court but not merged into the court’s decree would not apply where the court, in addition to stating in its decree that the property settlement agreement “is hereby ratified, confirmed and approved, but is not merged herein,” also specifically ordered the defendant to make alimony payments; accordingly, the trial court had continuing jurisdiction to modify the alimony award under former section governing modification of alimony awards. Sullivan v. Sullivan, 102 Idaho 737, 639 P.2d 435 (1981).

ALR.

Power of court to modify decree for alimony or support to spouse which was based on agreement of parties. 61 A.L.R.3d 520.

Divorced woman’s subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree. 98 A.L.R.3d 453.

Right to credit on child support for health insurance, medical, dental, and orthodontic expenses paid for child’s benefit while child is not living with obligor parent. 1 A.L.R.6th 493.

Right to credit on child support for contributions to educational expenses of child while child is not living with obligor parent. 2 A.L.R.6th 439.

Right to credit on child support for contributions to travel expenses of child while child is not living with obligor parent. 3 A.L.R.6th 641.

Right to credit on child support for continued payments to custodial parent for child who has reached majority or otherwise become emancipated. 4 A.L.R.6th 531.

Retirement of husband as change of circumstances warranting modification of divorce decree — Conventional retirement at 65 years of age or older. 11 A.L.R.6th 125. Retirement of husband as change of circumstances warranting modification of divorce decree — Early retirement. 36 A.L.R.6th 1.

Compiler’s Notes.

This section, which comprised R.S., § 2478; reen. R.C. & C.L., § 2668; C.S., § 4648; I.C.A.,§ 31-710, was repealed by S.L. 1980, ch. 378, § 1.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Federal References.

Title IV-D of the Social Security Act, referred to in subsection A. of this section, is compiled as 42 U.S.C.S. §§ 651 to 667.

Order Under Uniform Act.

A support order made in an Idaho court in an uniform reciprocal enforcement of support act case does not nullify an existing support order which has been entered in this state. Nomer v. Kossman, 100 Idaho 898, 606 P.2d 1002 (1980).

Venue for Proceedings.

Other than in unusual circumstances, where the party required to pay support is found in Idaho, an appropriate proceeding should be brought in the court which entered the original decree. Nomer v. Kossman, 100 Idaho 898, 606 P.2d 1002 (1980).

ALR.

Power of divorce court, after child attained majority, to enforce by contempt proceedings payment of arrears of child support. 32 A.L.R.3d 888.

Compiler’s Notes.

This section, which comprised 1875, p. 639, § 6; R.S., § 2479; reen. R.C. & C.L., § 2669; C.S., § 4649; I.C.A.,§ 31-711, was repealed by S.L. 1980, ch. 378, § 1.

Cross References.

Community property generally,§ 32-901 et seq.

Effective Dates.

Section 2 of S.L. 1965, ch. 63 declared an emergency. Approved Feb. 27, 1965.

Alimony Distinguished.

In this state, award of alimony is not considered as an award of community property, the two being separate and distinct. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

Cash Award in Lieu of Division.

A divorce decree for the wife on the ground of extreme cruelty could not be complained of on her appeal because the decree awarded to her $1,000 in cash instead of an interest in allegedly community realty, where realty was subject to indebtedness far in excess of its value. Malone v. Malone, 64 Idaho 252, 130 P.2d 674 (1942).

A qualified domestic relations order is a present separation of future retirement benefits and, under certain circumstances, may be preferable over a cash distribution because it does not place an undue financial strain on either party; but where husband was prepared to make a lump sum payment to wife the magistrate should have included a provision in the qualified domestic relations order that would have given him the option to make a lump sum payment to her within 60 days after judgment was entered representing the present value of her interest in the fixed benefit plan benefits. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

Community Debts.

The assignment of the community debts to the husband was not an abuse of discretion, where the findings of fact contained ample justification for the disparate division of property, including the duration of marriage, employability of each spouse, and the present and potential earning capability of each party. Shurtliff v. Shurtliff, 112 Idaho 1031, 739 P.2d 330 (1987).

Discretion of Court.

Disposition of community property is, in the first instance, in the discretion of trial court and unless such discretion is abused, judgment will not be disturbed. Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94 (1917).

Disposition of community property, where divorce is granted on ground of extreme cruelty, is primarily committed to discretion of trial court. Carter v. Carter, 39 Idaho 798, 230 P. 768 (1924); Smiley v. Smiley, 46 Idaho 588, 269 P. 589 (1928).

An appellate court can modify decree of distribution where divorce is granted on grounds of extreme cruelty or adultery, since in such cases its discretion is superior to discretion of trial court. O’Brien v. O’Brien, 73 Idaho 64, 245 P.2d 785 (1952).

When a marriage is dissolved by decree on the grounds of adultery or extreme cruelty, the trial court has jurisdiction to assign the community property to the respective parties in such proportions as the trial court or the condition of the parties deems just. The decree in such cases is subject to revision on appeal in all particulars including those which are stated to be in the discretion of the court. Linton v. Linton, 78 Idaho 355, 303 P.2d 905 (1956).

Where a divorce is granted on grounds of extreme cruelty, the disposition of the community property is committed to the discretion of the trial judge in the first instance, subject, however, to the paramount and superior discretion of the appellate court, and more than one-half may be awarded non-offending spouse. Farmer v. Farmer, 81 Idaho 251, 340 P.2d 441 (1959).

Where a divorce is granted on the ground of extreme cruelty, the division and disposition of the community property is committed to the discretion of the trial judge primarily, and in the first instance, subject to the paramount and superior discretion of the appellate court. Jordan v. Jordan, 75 Idaho 512, 275 P.2d 669 (1954); Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960).

Where a divorce is granted on the ground of extreme cruelty, the court may divide the community property between the parties in such amounts as in its discretion it may determine to be fair and equitable having regard to the circumstances of the parties. Jolley v. Jolley, 83 Idaho 433, 363 P.2d 1020 (1961).

The division of community property between parties to a divorce action by the court is subject to the paramount and superior discretion of the supreme court on appeal who may in the exercise of such discretion award a larger portion of the community property to the unoffending spouse. Jolley v. Jolley, 83 Idaho 433, 363 P.2d 1020 (1961).

Where divorce is granted the wife on the ground of extreme cruelty, the disposition of community property is committed to the discretion of the trial court in the first instance. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

A wife awarded a divorce on the ground of extreme cruelty was not entitled to more than half of the community property as a matter of right, but the trial court had discretionary power to assign the community property in such proportions as it deemed just. Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968).

The division of community property on divorce is within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse. A substantially equal division of community property is sufficient; an exact mathematical division is neither required nor likely. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972). The method employed by the trial court in determining the total value of a tract and dividing that amount equally between the parties was within the discretion vested in it by this section. Hooker v. Hooker, 95 Idaho 518, 511 P.2d 800 (1973).

Division of community property is a matter within the sound discretion of the trial court, and in absence of clear showing of abuse of such discretion, the award will not be disturbed. Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

Where a divorce is decreed upon the ground of extreme cruelty, the community property must be assigned the proportions that the trial judge deems just. A trial court thus has wide discretion in dividing the community property, and its determination will not be disturbed absent a clear showing of abuse of discretion. Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

The threshold choice between substantial equality and some other equitable division of the property is committed to the trial judge’s sound discretion, guided by statutory and case law; if the judge elects an unequal division, the appellate court’s inquiry is whether, in the circumstances of the case, the judge has abused his discretion by doing so. Bailey v. Bailey, 107 Idaho 324, 689 P.2d 216 (Ct. App. 1984).

Where a magistrate has set out to achieve equality, his decree will not be disturbed on appeal if it appears — upon substantial and competent, albeit conflicting, evidence — that the parties have received substantially equal shares. Donndelinger v. Donndelinger, 107 Idaho 431, 690 P.2d 366 (Ct. App. 1984).

Under this section the trial court has the discretion to make a just division of the community property; the division must be substantially equal in value, unless there are compelling reasons otherwise, and maintenance may be considered. Ross v. Ross, 117 Idaho 548, 789 P.2d 1139 (1990).

Division of Property.

Upon cause being remanded to lower court for additional findings, it may make new order for division of community property as directed by this section. Callahan v. Callahan, 33 Idaho 241, 192 P. 660 (1920).

Where husband and wife own community property, and wife owns separate property, trial court erred in setting off wife’s separate property against community property awarded husband, as all community property must be equally divided between the parties. Jordan v. Jordan, 69 Idaho 513, 210 P.2d 934 (1949).

A divorce granted to husband for mental cruelty did not deprive the wife of her interest in the community property, since court was required to consider the facts of the case and the conditions of the parties before making a division. Prophet v. Peterson, 77 Idaho 257, 291 P.2d 290 (1955).

In making a disposition of community property after divorce, it is proper for the trial court to recognize certain equities in the wife’s favor relating to her separate real property. Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960).

Where the divorce is decreed upon the grounds of extreme cruelty, the property must be assigned to the respective parties in such proportions as the court from the facts of the case and conditions of the parties deems just. Milbourn v. Milbourn, 86 Idaho 213, 384 P.2d 476 (1963).

The court will, ordinarily, dispose of community property so as to give each spouse sole and immediate control of his or her determined share. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964). While ordinarily the court should so dispose of the community as to give each spouse sole and immediate control of her or his determined share, where such a settlement would work a hardship, it would otherwise dispose of the community property, and the court’s decree may provide that respondent pay appellant her community share in monthly payments. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

In dividing community property between spouses, where husband’s separate business had large retained earnings, court must look to the extent the community would have been benefited if husband’s share of earnings had been distributed to him. Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314 (1974).

Where stock was a part of the community property, it was improper to use the book value to value the stock where it was not shown that market and book value approximated one another. Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

Debts which were not evidenced by written instrument but were accounts on the books of the corporation to which they were owed and which had no due dates or interest charge were properly classified as community property and assigned to respondent in the division of the property where it was shown that such debts would be satisfied without expense to the respondent and there was no evidence that such accounts were not debts. Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

In divorce action in which trial court awarded all of a certain stock to the husband and the record did not reveal the basis on which the shares were awarded, such action must be remanded for clarification of the rationale followed in awarding the stock in order to aid the parties in understanding what the trial court intended. Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

In a division of community property such as stock in a corporation, where the shares are not divided between the parties, but are valued by the trial court and then properties of relatively equal value are distributed to each of the parties, it is essential that the trial court make an accurate determination of the market value of the properties prior to making an award which determination must be based upon competent and substantial evidence. Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

Although the voidance of§ 32-909 will render both spouses’ post-separation earnings community property, this section provides for the just assignment of community property upon the dissolution of the marriage, regardless of the ground for divorce; the inclusion of all post-separation earnings of both spouses as community property, therefore, neither prohibits nor requires that they be assigned to the spouse who earned them. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

Where the record contained neither a statement of compelling reasons for dividing the community estate unequally nor a set of findings to indicate substantial equality, the court had to vacate the provisions of the divorce decree which distributed the community property and allocated the community debts. Bailey v. Bailey, 107 Idaho 324, 689 P.2d 216 (Ct. App. 1984).

In dividing the community estate, a trial court must determine the extent and value of the community property, then deduct the community debts outstanding at the time of trial, as well as any attorney fees or support payments required to be made with community funds, and then distribute the balance to the spouses. Donndelinger v. Donndelinger, 107 Idaho 431, 690 P.2d 366 (Ct. App. 1984). The method by which the property is distributed is left to the discretion of the trial court, but ordinarily the trial court should divide the community property in such a way as to give each spouse the sole and immediate control of his or her share of the property; thus, to give each spouse the immediate control of his or her share of the property, the trial court may provide for the sale of community property so long as the sale order does not amount to waste of a community asset or provide that the property be sold for less than it is worth. Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985).

The choice between substantial equality and some other equitable division is committed to the trial judge’s sound discretion, guided by statutory and case law. Brazier v. Brazier, 111 Idaho 692, 726 P.2d 1143 (Ct. App. 1986), overruled on other grounds, Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

— Equality.

Where retention of earnings in a separate property entity has greatly increased one spouse’s separate estate, leaving a modest community estate to be divided with the other spouse, the court may deviate from equality in order to alleviate hardship. Brazier v. Brazier, 111 Idaho 692, 726 P.2d 1143 (Ct. App. 1986), overruled on other grounds, Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

Nothing in subdivision (1) of this section or§ 32-713A [now repealed] requires that each community asset must be divided equally; paragraph (a) of subdivision (1) of this section only requires that the division be substantially equal in value, and any community asset may change in value after the division of the community. Ross v. Ross, 117 Idaho 548, 789 P.2d 1139 (1990).

Magistrate abused his discretion by failing to follow the mandate of subsection (1) of this section, namely, by refusing to consider whether decree provided for a substantially equal division in value of the community property, taking into account the military retirement benefit. Brooks v. Brooks, 119 Idaho 275, 805 P.2d 481 (Ct. App. 1990).

Where tax liability of couple was estimated at $30,000 but was actually $11,000, such estimate was an excusable mistake of fact which could support a grant of relief. The next step in the exercise of the magistrate’s discretion should have been to determine whether to grant the motion. Here the court in granting relief must be governed in the exercise of its discretion by the statutes which regulate Idaho divorce actions, and specifically subsection (1)(a) of this section, which mandates a substantially equal division in value, considering debts, between the spouses, unless there are compelling reasons otherwise. Thomas v. Thomas, 119 Idaho 709, 809 P.2d 1188 (Ct. App. 1991).

Where, in his findings and conclusions the magistrate expressly held that “the community property of the parties should be allocated and divided as near to equal as possible,” this conclusion made clear that the magistrate set out to achieve a substantially equal division of the parties’ community assets under this section. Jones v. State, 125 Idaho 294, 870 P.2d 1 (Ct. App.), cert. denied, 513 U.S. 838, 115 S. Ct. 121, 130 L. Ed. 2d 66 (1994).

Allocation of value of dissipated assets during a period of separation to the wife was proper in a divorce action pursuant to this section, although the marital estate no longer had those assets, where there was sufficient evidence to show her intent to dissipate the assets during that time; an unequal division of the proceeds of the parties’ ranch after partition was deemed an abuse of discretion, where such unequal apportionment had been based on the fact that the husband had requested the partition, because the resultant loss of value due to the partition was not a compelling reason to punish the husband by unequal distribution. Larson v. Larson, 139 Idaho 972, 88 P.3d 1212 (Ct. App. 2003). The award of the husband’s full 401(k) account to the husband resulted in an unequal division of the marital property with the husband receiving an award of $133,303, while the wife was awarded less than $100,000, in violation of the provisions of this section. Moffett v. Moffett, 151 Idaho 90, 253 P.3d 764 (Ct. App. 2011).

— Proper.

Supreme court would not disturb trial judge’s division of community property upon appeal of divorce granted on ground of extreme cruelty, the division appearing fair and equitable. Jordan v. Jordan, 75 Idaho 512, 275 P.2d 669 (1954).

Property settlement amounting to more than one half the community property upheld on appeal where evidence adduced was sufficient to sustain trial court. Riggers v. Riggers, 81 Idaho 570, 347 P.2d 762 (1959).

The trial court did not abuse its discretion in apportioning the property (other than an equity in a dwelling) in favor of appellant wife by some $450, even where the divorce was granted the respondent husband on the ground of extreme cruelty. Nichols v. Nichols, 84 Idaho 379, 372 P.2d 758 (1962).

The trial court did not abuse its discretion in the division of the community property where, in a divorce decreed upon the ground of extreme cruelty, the court awarded respondent the farming equipment and household furniture and fixtures, also decreeing respondent to pay appellant an amount equal to one half in value thereof. Fisher v. Fisher, 86 Idaho 131, 383 P.2d 840 (1963).

Pursuant to this section, the disposition of the property of parties to a divorce action is committed to the discretion of the trial court in the first instance, and in light of the division of the property made by the trial court, the requirement that appellant wife pay her own attorney fees was just and proper. Milbourn v. Milbourn, 86 Idaho 213, 384 P.2d 476 (1963).

Trial court did not abuse its discretion in failing to apportion substantially more than one half of the value of the community to the wife in granting her a divorce upon the ground of extreme cruelty, where the record disclosed that neither party was without fault, as it must be presumed that the court considered the earning capacity of both parties, and found that the wife had intelligence and education to enable her to find and hold employment. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

Inasmuch as trial court granted respondent husband the divorce on the ground of extreme cruelty, in adjudging disposition of the community property, it was not error to award appellant approximately only 25 percent thereof, subject to revision on appeal to the paramount and superior discretion of the appellate court. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964).

An award of $53,000 community property to the wife and $24,000 to the husband (consisting of a business operated by him) upon a decree of divorce for extreme cruelty was held not to be an abuse of discretion upon appeal by the wife. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967).

Evidence that the husband, although totally disabled, had an income of $264 per month was sufficient to support the trial court’s award of $35.00 a month for each minor child and decree vesting in him the community property but directing him to pay half its appraised value to the wife in instalments of $35.00 per month. Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (1967). The record showed no abuse of discretion in awarding two homes owned by the parties to the husband and one to the wife and ordering the husband to pay the non-real estate community indebtedness of $15,000 where neither party offered any evidence as to the present value of any of the real estate. Barker v. Barker, 92 Idaho 204, 440 P.2d 137 (1968).

There was no abuse of discretion in the equal division of community property where witnesses testified to a lower value as that which they would offer for the property if buying and to a higher value which they would ask if selling, and the court accepted the higher valuation. Johnson v. Johnson, 92 Idaho 365, 442 P.2d 775 (1968).

There was no abuse of discretion by the trial court where the judge decided that the attorneys’ fees of both parties were community debts and were to be satisfied out of the community property before the division, since the awarding and method of payment of attorney fees is a matter which is within the discretion of the trial court. Brammer v. Brammer, 93 Idaho 671, 471 P.2d 58 (1970).

Where trial court’s exercise of discretion in ordering payments of $225 per month by husband to purchase wife’s half-interest in the ranch and cattle had not been shown to violate a statute or cause a “serious inequity,” it would not be disturbed on appeal. Ripatti v. Ripatti, 94 Idaho 581, 494 P.2d 1025 (1972).

Where interest earned on certificate of deposit was directly related to wife’s sole and separate property, little or no community efforts were expended in acquiring the interest, the duration of the marriage was short, wife had to rely upon this investment to provide her with funds with which to pay for all of her living expenses, while husband had his military retirement income as well as income from the sale of his residence, wife had no retirement income or pension plan to aid her in her later years while husband had no needs or worries in that respect, and wife had no marketable skills to enable her to become employed while husband was capable of being employed, the magistrate’s findings of fact and conclusions of law paralleled the factors listed and provided appropriate grounds for unequal distribution of the community property. Lang v. Lang, 109 Idaho 802, 711 P.2d 1322 (Ct. App. 1985).

A disparate division in community property which served not only to meet the disabled spouse’s immediate expenses but provided some discretionary resources enhancing his quality of life and giving him a cushion against risk of future changes in living expenses, was not an abuse of discretion by the magistrate. Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Husband asserted that the parties never established the requisite “marital community” to which benefits and detriments would accrue, demonstrated by the brevity of the marriage and the fact that it was troubled from its onset, but it is within the discretion of the trial court to determine whether there were any compelling reasons that would justify a division of the community property that is not substantially equal and the magistrate’s findings and conclusion reveal that the magistrate 1) understood that the division of the community was within the magistrate’s discretion, 2) acted within the outer boundaries of the discretion and consistent with the legal standards provided in subsection (1) of this section, and 3) reached the decision by an exercise of reason; therefore, there was no abuse of discretion in dividing the community. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

— Subsequent to Divorce Decree.

Where record contained evidence of husband’s employment and earnings as well as those of wife and where the factual determination that husband was in a better position to shoulder the community debt was adequately supported by substantial and competent evidence, the magistrate’s unequal division of the community property was not an abuse of discretion. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995). — Subsequent to Divorce Decree.

Division of property may be made in a later suit. Kuhnen v. Kuhnen, 29 Idaho 712, 161 P. 1041 (1916).

If allegation in complaint for divorce states that a complete disposition has been made of the property of the parties, and the court therefore in its decree fails to mention the property, the court upon being advised in a subsequent proceeding that fair division has not been made between the parties, will make a division based on the rights of the parties as of the time of the divorce. Prophet v. Peterson, 77 Idaho 257, 291 P.2d 290 (1955).

Effect of Decree.

Appellant wife, having submitted to the jurisdiction of the Idaho district court and having submitted her interest in the community estate to the trial court for determination, was bound by such determination, no appeal having been taken from the distribution of the community estate as allocated by the district court. Porter v. Porter, 84 Idaho 400, 373 P.2d 327 (1962).

Divorce decree, in which husband was awarded all the equity in the homestead subject to an obligation to pay the wife a portion of her equity, divested the wife of her real property interest in the house and converted it into a lien, which was a personal property interest. Therefore, the wife was not entitled to relief from a sheriff’s sale of the homestead arising from her failure to make certain payments to the husband, because she was provided notice via mail for an execution against personal property. Chavez v. Barrus, 146 Idaho 212, 192 P.3d 1036 (2008).

Equal Interest of Spouses.

Right of divorced wife to her share of community estate arises from her equal rights in the property; her interest is of the same nature and extent as that of her husband. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

Findings of Court.

A requirement of specific findings in divorce cases demonstrates to the parties that the trial court has examined their case with due care and attention to the evidence; such a requirement also encourages a judge to rely upon objectively supportable grounds for his decision, and discourages subjective or attitude-influenced perceptions of the case. Donndelinger v. Donndelinger, 107 Idaho 431, 690 P.2d 366 (Ct. App. 1984).

In all divorce cases where substantial equality is sought to be achieved not by splitting each asset, but by valuing the assets and allocating them in a manner designed to achieve a substantially equal, aggregate result, the trial judge must make findings concerning the value of each material asset; an asset or debt is “material” if it is sufficiently valuable to affect the substantial equality sought to be achieved by the decree. Donndelinger v. Donndelinger, 107 Idaho 431, 690 P.2d 366 (Ct. App. 1984).

A failure to state specific reasons justifying unequal property division was properly disregarded on appeal from a divorce action in which the sum total of the evidence demonstrated that the husband, as a profoundly disabled person, probably unemployable and saddled with ongoing expenses related to his condition, required a greater share of the community property to support himself, and the reasons clearly appeared from the record. Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988). The magistrate did not err in failing to make specific findings as to the value of the property distributed. Campbell v. Campbell, 120 Idaho 394, 816 P.2d 350 (Ct. App. 1991).

Foreign Divorce.

It is conceivable, under this section, that court may deny relief to either party who has gone into another state and dissolved marital relations by constructive service of process and thereafter returned to state for purpose of being decreed interest in community property, where resident member challenges validity of proceedings in foreign state and sets up rights under local law. Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

This section does not apply to case where spouse has obtained divorce in foreign jurisdiction and claims interest in community property in state of marriage, unless other spouse contests validity of foreign divorce and shows that decree of foreign court is not entitled to full faith and credit in courts of domicil. Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

While Idaho court was required to give full faith and credit to Utah divorce decree and award of Utah home to wife, Idaho court’s decision that husband was entitled to have wife’s equity in the Utah home considered in the ultimate division of marital assets in wife’s Idaho action was correct. Beesley v. Beesley, 114 Idaho 536, 758 P.2d 695 (1988).

Goodwill of a Business.

A trial court may require a business’s goodwill to be included in the sale. Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985).

When a family-owned business is sold to facilitate a property division in a divorce, the trial court must consider the unique character of goodwill along with the factors in this section to determine whether the goodwill asset should be divided equally; the unique nature of goodwill, its sale by means of a noncompetition clause, its varying importance to the separate individuals of the marital community, and the effect of its sale on the factors listed in this section may constitute compelling reasons to divide the value received for goodwill unequally. The court should also consider the tax consequences (if any) to the parties, vis-/Ga-vis each other and vis-/Ga-vis the buyer of the business, resulting from differing treatment, for tax purposes, of goodwill and of covenants not to compete. Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985).

On appeal from the disposition of property following a divorce decree, where the parties did not have an interest in the truck stop until after they were married, and all their labor on behalf of the business occurred during coverture, any goodwill value of the business was community property which should have been valued and distributed upon divorce. Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985).

In a property division action as part of divorce, a magistrate judge did not abuse its discretion in determining that a former husband’s medical practice had value in goodwill in excess of the husband’s personal skills when the judge relied on the capitalized excess earnings method to calculate the value and considered other factors that had separate value from the husband’s skills. To the extent a professional services corporation has goodwill value beyond personal assets of knowledge, skill, and background of the professional, that goodwill is community property. Stewart v. Stewart, 143 Idaho 673, 152 P.3d 544 (2007).

Improvements to Separate Property.

On the granting of a divorce to the wife on the ground of extreme cruelty, the community estate was entitled to be credited, and the husband’s separate estate charged, with expenditures made from the community funds in the improvement of his separate property, but not with expenditures voluntarily made without cost to the community by his children, who were tenants on the property. Malone v. Malone, 64 Idaho 252, 130 P.2d 674 (1942).

Where wife used funds from sale of portion of land given her by her father prior to marriage to construct a dwelling on the remaining portion of the land, the husband was not entitled to an interest in the property on divorce based on expenditure of some of his funds in the property or expenditure of funds for family support, since such expenditures did not operate to change title of property owned by wife. Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999 (1953).

Where husband would continue to get the benefit of the expenditure of community funds for improvements made to warehouse, it was equitable for the court to make an unequal award of assets based on the expenditure. Smith v. Smith, 124 Idaho 431, 860 P.2d 634 (1993).

In General.

In action for divorce, question of the ownership of real estate will not be determined unless divorce is granted. Bell v. Bell, 15 Idaho 7, 96 P. 196 (1908).

This section contemplates a complete division of community property, leaving the parties free of tangled interests. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

The division of property upon a decree of divorce is guided by the principle that it must be assigned as deemed just, with a substantially equal division in value unless there exist “compelling” reasons to order an unequal division. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Jurisdiction of Court.

Idaho court having personal jurisdiction of both parties may award wife the right to use and occupy the family residence in Washington; it has jurisdiction to enforce its mandate by coercion if necessary. Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52 (1933).

When the divorce action is instituted, the court has the power to take jurisdiction of the community property and the homestead and to make all necessary and proper orders for its protection, and to prohibit the sale or other disposition of same without order of court until such time as the divorce action is heard and finally determined. Benson v. District Court, 57 Idaho 85, 62 P.2d 108 (1936).

Where wife sued divorced husband to recover insurance policy which was awarded her in divorce decree, husband could not attack decree collaterally on ground that divorce court did not have jurisdiction of policy where there was nothing in record to show the contrary. Hartenbower v. Mutual Benefit Life Ins. Co., 67 Idaho 254, 175 P.2d 698 (1946).

The trial court in a divorce proceeding may enforce its orders regarding property distribution with contempt proceedings. Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985).

Because the convertible notes and stock allocations were community property at the time of the parties’ divorce and were divided pursuant to the property settlement agreement, the magistrate court had jurisdiction to interpret and enforce the terms of the agreement. Borley v. Smith, 149 Idaho 171, 233 P.3d 102 (2010).

Method of Payment.

Decree providing for payment of wife’s share of community property in monthly installments was modified to provide for payment in lump sum. Beckstead v. Beckstead, 50 Idaho 556, 299 P. 339 (1931).

Where giving each spouse sole and immediate control of his or her determined share of community property would work a hardship, trial court decree may provide that husband pay wife’s community share in monthly installments, secured by whatever means trial court deems proper. Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).

Postnuptial Agreement.

In divorce suit where property rights are involved and postnuptial settlement is presented and relied upon as a settlement of all property rights, and such agreement is challenged on the ground that it is unfair and inequitable and fraudulent, evidence must show clearly that the post nuptial settlement is in every way fair and unexceptionable on equitable grounds. De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664 (1913).

Although the wife had a contingent community interest in convertible notes, which were issued to replace a terminated pension plan, the notes were not assets that were omitted from the agreement, but were divided under the division of retirement benefits section of the agreement, which the trial court could not modify, but could enforce. Borley v. Smith, 149 Idaho 171, 233 P.3d 102 (2010).

Prenuptial debts.

Where community funds were not used to enhance the value of husband’s separate property, but were used to pay off husband’s prenuptial debts and there was no claim of unfair dealing, the husband was not required to reimburse the community estate upon divorce. Bliss v. Bliss, 127 Idaho 170, 898 P.2d 1081 (1995).

Repossessed Property.

Where the record in a divorce proceeding was inadequate as to what ultimately happened to a sailboat that was repossessed by a bank during the divorce proceeding, the magistrate erred in awarding the boat to the husband and charging its full market value against him in the division of community property, because the actual value of the boat to the community could not be ascertained until sale or other disposition of the boat in the proceedings commenced by the bank. Stockdale v. Stockdale, 102 Idaho 870, 643 P.2d 82 (Ct. App. 1982).

Retirement Benefits.

An award of a lump sum to a nonemployee spouse may be a better remedy than retaining jurisdiction until the retiring spouse’s rights in his pension plan have vested and making a division of the payments when received, where there are substantial amounts of other liquid assets and the retirement either has occurred, or where retirement is imminent, such as where the employee spouse is close to mandatory retirement age. Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979).

Where the magistrate has set out to achieve equality, the decree will not be disturbed on appeal if it appears, upon substantial, albeit conflicting evidence, that the parties have received substantially equal shares. Jones v. State, 125 Idaho 294, 870 P.2d 1 (Ct. App.), cert. denied, 513 U.S. 838, 115 S. Ct. 121, 130 L. Ed. 2d 66 (1994). The material assets of the parties must be identified, then it must be determined what assets are separate property and what assets are community property; the separate property assets should be specifically noted and allocated to the proper spouse, and the community property assets must be valued and distributed substantially equally unless the court finds compelling reasons otherwise. Cummings v. Cummings, 115 Idaho 186, 765 P.2d 697 (Ct. App. 1988).

The trial courts in Idaho should have broad discretion to fashion an equitable division of contingent retirement benefits upon dissolution of a marital community. Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979).

Where the time for retirement is uncertain and where the value of the employee’s monthly benefits is dependent upon the number of years of employment at retirement, which may not be known at the time of the divorce, and where maintenance of the pension benefits after divorce will be from the employee spouse’s separate property, or the property of a subsequent community, a reasonably accurate calculation of the present value of the pension rights derived from community effort may not be possible, and the trial court should consider withholding the retirement rights from the property disposition and decreeing that the parties hold the rights to the benefits as tenants in common, then if and when the employee spouse does obtain retirement benefits the trial court can determine what portion of the rights were derived from community property and divide the payments accordingly. Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979).

The legislature had authority to authorize the modification of divorce judgments in order to provide relief for those women affected by McCarty v. McCarty , 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), a decision prohibiting state courts from dividing military retirement benefits according to state community property laws. Ross v. Ross, 117 Idaho 548, 789 P.2d 1139 (1990).

The evidence presented to the magistrate, which related to the value of the pension benefits, was in the form of account statements showing the contributions made during the marriage and the account balance at the time of marriage and at the time of divorce; any contributions, increases or earnings in the account which occurred prior to the marriage are separate property under§ 32-903, and that portion of the account was reflected in the account balance at the time of marriage; therefore, by subtracting the account balance at the time of marriage from the account balance at the time of divorce, the portion of the contributions and the increases in the account which were acquired during the marriage are identified and there is a rebuttable presumption that all property acquired during marriage — in this case, contributions and increases in the account — is community property. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

Because wife in divorce action was awarded a sum equal to her interest in the military retirement benefits of her husband to be paid in installments, she was entitled to interest accrued at the rate used to discount the retirement benefits to their present value. Balderson v. Balderson, 127 Idaho 48, 896 P.2d 956 (1995), cert. denied, 516 U.S. 865, 116 S. Ct. 179, 133 L. Ed. 2d 118 (1995).

Review of Disposition.

Sale of Community Property.

When a major portion of an award is found to have been made erroneously, it is only equitable that the trial court review the disposition of the community property and the allowance for the wife’s support so that ultimate disposition of the property is fairly and equitably made with adequate allowance for the wife’s support. Stahl v. Stahl, 91 Idaho 794, 430 P.2d 685 (1967). Sale of Community Property.

Where the community property was not susceptible of division, the trial court properly ordered it to be sold, the proceeds remaining after payment of liens and mortgages on the property and expenses of the sale to be divided equally between the parties. Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960).

The trial court properly treated a dwelling of parties to a divorce action as community property, ordering it to be sold and the separate property equity of $2,500 therein which the wife had paid on the purchase price from her separate funds, to be paid to her prior to a division of the purchase price. Nichols v. Nichols, 84 Idaho 379, 372 P.2d 758 (1962).

Sale of Separate Property.

A divorce decree may not compel one spouse to sell his or her separate property to the other spouse. Pringle v. Pringle, 109 Idaho 1026, 712 P.2d 727 (Ct. App. 1985).

Separate Property.

There was substantial evidence to support trial court’s finding of no enhancement in the value of husband’s separate partnership interest; experts for both sides testified that the factors contributing to an increase in value of a business such as a bottling company in this case could not be separately identified. Swope v. Swope, 122 Idaho 296, 834 P.2d 298 (1992).

The community has no interest in the retained earnings of a corporation, the stock of which is held as separate property by one of the stockholders, unless the stockholder has sufficient control of the corporation to be able to cause the earnings to be retained; in this case, husband had only a 25% interest in the corporation; no community interest was created in his separate stock as the result of the retained corporate earnings, and the magistrate erred by holding otherwise. Swope v. Swope, 122 Idaho 296, 834 P.2d 298 (1992).

By awarding the mother the right to care for the children on certain mornings at the father’s home, the magistrate judge in effect awarded her the right to enter and use the father’s separate property, which was impermissible under this section, as the court had no power or authority to award all or any part of the father’s separate property to the mother as part of the divorce decree. Schneider v. Schneider, 151 Idaho 415, 258 P.3d 350 (2011).

Stock.

Where the community owns stock in a closely held corporation, with majority control in one spouse and with virtually no public market for the stock, the simple division of the stock does little to completely separate the parties and their property. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Trial court erred in equally dividing community stock in a closely held corporation with majority control in the husband and virtually no public market for the stock. Upon remand, if wife received a judgment for a monetary amount equivalent to the value of her shares, she was entitled to interest on any deferred payments at the judgment rate specified in§ 28-22-104(2) and running from the date of judgment, not the date of divorce. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Trust Property on Indian Reservation.

Where the magistrate divided the soon-to-vest stock options, ordering that the wife have the right to exercise her share of the community options by paying the exercise price after the vesting date, the method was consistent with subsection (1)(a) of this section and furthered the policy of separating the parties’ interests in the property, giving each immediate control over their interests in community property as that interest matures, while avoiding the inequitable distribution of the assets. Batra v. Batra, 135 Idaho 388, 17 P.3d 889 (Ct. App. 2001). Trust Property on Indian Reservation.

State courts have the power in divorce actions to award a non-Indian spouse recompense for his or her portion of the community contribution used to purchase trust property located within the boundaries of an Indian reservation. Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982).

The exceptions to state jurisdiction in 25 U.S.C.S. § 1322(b) and§ 67-5103, dealing with federal trust properties, do not prevent the courts of this state from requiring that one party to a marriage recompense the other party for his or her share of the community contributions that have gone into property that is held in trust or subject to a restraint on alienation by the federal government. Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982), overruled on other grounds, Coeur d’Alene Tribe v. Johnson, 162 Idaho 754, 405 P.3d 13 (2017).

Unequal Division.

District court erred where it did not recognize that it had discretion under subsection 1 to consider whether the ex-wife’s claimed reasons were compelling enough to order an unequal division of property. Dunagan v. Dunagan, 147 Idaho 599, 213 P.3d 384 (2009).

ALR.

Spouse’s professional degree or license as marital property for purposes of alimony, support or property settlement. 4 A.L.R.4th 1294.

Effect of trial court giving consideration to needs of children in making property division — Modern status. 19 A.L.R.4th 239.

Division of lottery proceeds in divorce proceedings. 124 A.L.R.5th 537.

Inherited property as marital or separate property in divorce action. 38 A.L.R.6th 313.

Divorce and separation: Appreciation in value of separate property during marriage with contribution by either spouse as separate or community property (doctrine of “active appreciation”). 39 A.L.R.6th 205.

Validity of postnuptial agreements in contemplation of divorce. 77 A.L.R.6th 293. Homestead right of cotenant as affecting partition. 83 A.L.R.6th 605.

Validity of postnuptial agreements in contemplation of spouse’s death. 87 A.L.R.6th 495.

Allocation of Property.

By exercising discretion in ordering the parties’ real estate partitioned, the magistrate caused a loss in value of the community property which could not be allocated as part of the property division. Larson v. Larson, 139 Idaho 970, 88 P.3d 1210 (2004).

Divorce decree, in which husband was awarded all the equity in the homestead subject to an obligation to pay the wife a portion of her equity, divested the wife of her real property interest in the house and converted it into a lien, which was a personal property interest. Therefore, the wife was not entitled to relief from a sheriff’s sale of the homestead arising from her failure to make certain payments to the husband, because she was provided notice via mail for an execution against personal property. Chavez v. Barrus, 146 Idaho 212, 192 P.3d 1036 (2008).

Jurisdiction.

Where at the time of the divorce the court did order a sale of the residence, but delayed the sale until the wife remarried or removed herself from the property and the husband did not appeal the divorce decree that included this provision, the district court, in ruling on a suit brought by the husband seeking the value of his interest in the residence, had no jurisdiction to consider anew a sale of the residence. Olsen v. Olsen, 115 Idaho 105, 765 P.2d 130 (1988).

Because the convertible notes and stock allocations were community property at the time of the parties’ divorce and divided and pursuant to the property settlement agreement, the magistrate court had jurisdiction to interpret and enforce the terms of the agreement. Borley v. Smith, 149 Idaho 171, 233 P.3d 102 (2010).

Order Held Proper.

An award of alimony to the wife in the amount of $110 a month until the husband paid the wife one-half of the net value of the community property, together with $700 attorney’s fee, or until the community property was sold and money arising therefrom disbursed as conditionally provided for in the decree, and in the amount of $50 a month after division of community property and payment of attorney’s fee, was not disturbed, where husband was owner of valuable encumbered property. Malone v. Malone, 64 Idaho 252, 130 P.2d 674 (1942). In an effort to avoid additional expense, it was a reasonable exercise of the court’s equitable powers to allow a divorced husband 90 days to effect and account for the sale of the mortgaged community home before a receiver would be appointed to sell the home. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

ALR.

Homestead right of cotenant as affecting partition. 83 A.L.R.6th 605.

Compiler’s Notes.

This section, which comprised I.C.,§ 32-713A, as added by S.L. 1987, ch. 68, § 1, was repealed by S.L. 1987, ch. 68, § 1 (4), p. 122.

Award by Appellate Court.

Supreme court, which on appeal found that the plaintiff was entitled to a divorce from common-law marriage on the ground of extreme cruelty, awarded the plaintiff one half of the value of accumulated property on land leased from the government though the defendant was indebted on the lease in the amount of $2,500 and owed other debts aggregating $1,500. Warner v. Warner, 76 Idaho 399, 283 P.2d 931 (1955).

Court on appeal modified decree of distribution where appellant was granted a divorce on charge of cruelty by awarding value of house in which appellant was living at time of marriage to appellant as her individual property, and awarding appellant 50 percent of stock sold and check given respondent. O’Brien v. O’Brien, 73 Idaho 64, 245 P.2d 785 (1952).

Where husband was awarded more than his share in community personal property the supreme court modified decree by providing that husband pay fees of wife’s attorney. Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999 (1953).

Decree Not Final.

Decree vesting title of corporation stock in husband for purpose of securing new certificates, 50 percent of which were to be in name of husband and 50 percent in name of wife, was not a final decree, since decree of distribution was subject to revision by Supreme Court on appeal. O’Brien v. O’Brien, 71 Idaho 468, 233 P.2d 1030 (1951).

Determination of Value.

Discretion of Trial and Appellate Courts.

Supreme court on appeal determined the respective interests of parties to community property, but since value of the property could not be determined from the record, the case would be remanded to the trial court for determination of value and to hear any further evidence that the parties might desire to submit. Prophet v. Peterson, 77 Idaho 257, 291 P.2d 290 (1955). Discretion of Trial and Appellate Courts.

An appellate court can modify decree of distribution where divorce is granted on grounds of extreme cruelty or adultery, since in such cases its discretion is superior to discretion of trial court. O’Brien v. O’Brien, 73 Idaho 64, 245 P.2d 785 (1952).

Where a divorce is granted on the ground of extreme cruelty, the division and disposition of the community property is committed to the discretion of the trial judge primarily and in the first instance, subject to the paramount and superior discretion of the appellate court. Jordan v. Jordan, 75 Idaho 512, 275 P.2d 669 (1954).

The supreme court has paramount discretion in the division and distribution of community property in a divorce granted on the ground of extreme cruelty. Warner v. Warner, 76 Idaho 399, 283 P.2d 931 (1955).

If a divorce is granted on the ground of extreme cruelty, the disposition of the community property is committed to the discretion of the trial court subject to the superior discretion of the appellate court, and more than one half may be awarded nonoffending spouses. Empey v. Empey, 78 Idaho 25, 296 P.2d 1028 (1956); Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960).

When a marriage is dissolved by decree on the grounds of adultery or extreme cruelty, the trial court has jurisdiction to assign the community property to the respective parties in such proportions as the trial court or the condition of the parties deems just. The decree in such cases is subject to revision on appeal in all particulars including those which are stated to be in the discretion of the court. Linton v. Linton, 78 Idaho 355, 303 P.2d 905 (1956).

Where a divorce is granted on grounds of extreme cruelty, the disposition of the community property is committed to the discretion of the trial judge in the first instance, subject, however, to the paramount and superior discretion of the appellate court, and more than one half may be awarded non-offending spouse. Farmer v. Farmer, 81 Idaho 251, 340 P.2d 441 (1959).

The division of community property between parties to a divorce action by the court is subject to the paramount and superior discretion of the supreme court who on appeal may in the exercise of such discretion award a larger portion of the community property to the unoffending spouse. Jolley v. Jolley, 83 Idaho 433, 363 P.2d 1020 (1961).

Where a divorce is granted on the ground of extreme cruelty, the court may divide the community property between the parties in such amounts as in its discretion it may determine to be fair and equitable having regard to the circumstances of the parties. Jolley v. Jolley, 83 Idaho 433, 363 P.2d 1020 (1961).

Where trial court granted respondent husband the divorce on the ground of extreme cruelty and awarded appellant only 25 percent of community property, such award was subject to revision on appeal to the paramount and superior discretion of the appellate court. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964).

In General.

Transmutation of property is a question of fact turning on intent, and trial courts may consider evidence beyond an unambiguous deed when deciding claims of transmutation of property. Factors to look at include (1) whether the community was liable for payment on the loan; (2) the source of the payments toward the loan; (3) the basis of credit upon which the lender relied in making the loan; (4) the nature of the down payment; (5) the names on the deed; and (6) who signed the documents of indebtedness. Barrett v. Barrett, 149 Idaho 21, 232 P.3d 799 (2010). In General.

Where findings of trial court are based on substantial, competent, although in instances conflicting, evidence, they will not be disturbed on appeal. Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960).

Method of Payment.

Ordinarily, trial court should give each spouse the sole and immediate control of his or her determined share of community property; however, best interest of the parties may require an award to be paid in instalments, rather than in lump sum. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964).

— Interest.

Wife was entitled to interest from date of divorce decree on amount of her funds used by her husband in acquiring a garage business. Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954).

Where the financial statement showed that a lump sum settlement would necessitate an additional loan or forced sale of community assets, but farming operations showed sufficient net income to pay by installments, trial court did not err in its decree dividing the community property with appellant’s award in annual payments over an extended period; however, failing to provide that the deferred installment payments bear interest at the legal rate of six percent per annum was error. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964).

Compiler’s Notes.

Section 1-901 referred to in this section was repealed by S.L. 1975, ch. 242, § 1, following the adoption of the Idaho Rules of Civil Procedure by the Idaho supreme court.

The bracketed insertion near the end of this section was added by the compiler to conform to the statutory citation style.

Alimony and Suit Money.

Motion for alimony must be heard in county or district in which action is pending. Supreme court does not have original jurisdiction in such matters, and such orders are made by supreme court only when necessary to complete exercise of its appellate jurisdiction. Callahan v. Dunn, 30 Idaho 225, 164 P. 356 (1917); Enders v. Enders, 34 Idaho 381, 201 P. 714 (1921); Hay v. Hay, 40 Idaho 624, 235 P. 902 (1925).

Original jurisdiction in matters of granting alimony and suit money in connection with divorce actions is vested in district courts or judges thereof at chambers. Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921); Enders v. Enders, 34 Idaho 381, 201 P. 714 (1921); Hay v. Hay, 40 Idaho 624, 235 P. 902 (1925).

This section vests in district court original jurisdiction to require husband, during pendency of appeal from judgment in divorce action, to pay alimony and suit money in prosecuting or defending appeal. Vollmer v. Vollmer, 43 Idaho 395, 253 P. 622 (1927).

Order of district court granting alimony is appealable. Vollmer v. Vollmer, 43 Idaho 395, 253 P. 622 (1927).

Child Custody.

District court has jurisdiction of care, custody, and education of minor children of divorced parents. Gifford v. Gifford, 50 Idaho 517, 297 P. 1100 (1931).

This section confers jurisdiction on the district court in all divorce actions. The trial court has power to provide for the care and custody of the children and of the property pending the suit until entry of final decree, so as to preserve the property from removal, waste or dissipation pending suit. Benson v. District Court, 57 Idaho 85, 62 P.2d 108 (1936).

The jurisdiction of the trial court over child custodial and visitation rights is a continuing one and should be exercised by the court in such detail and specificity of order as may be necessary to carry out the intent of the court. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Where the probate court declared children, of which the district court had granted the custody to the mother in a divorce action, to be dependent and neglected and placed them in a children’s home, in an action to which neither parent was a party, the district court properly adopted a writ of habeas corpus as a suitable means for inquiring into and determining the right of custody settlement of such children. Spaulding v. Children’s Home Finding & Aid Soc’y, 89 Idaho 10, 402 P.2d 52 (1965).

Since a district court has jurisdiction not only of the divorce proceedings, but continuing jurisdiction over questions involving the custody of minor children, it was acting within its jurisdiction when it found divorced wife in contempt for refusing divorced husband his child visitation rights, so that a writ of prohibition was improperly sought, improvidently issued, and was quashed. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Venue.

This section and§§ 32-702 and 32-704 do not bear on venue but, instead,§ 5-404 governs venue in divorce cases. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

Amendments.

The 2019 amendment, by ch. 28, substituted “twenty-one (21) days” for “twenty (20) days” twice in the first paragraph.

Cross References.

Annulment of marriage, custody of children,§ 32-504.

Child custody jurisdiction and enforcement act,§ 32-11-101 et seq.

Modification of support provisions,§ 32-709.

Separation without divorce, custody of children,§ 32-1005.

Amendments.

The 2007 amendment, by ch. 108, inserted “or when a member of the military reserve is ordered to active federal service under title 10, United States Code” in subsection (6).

Compiler’s Notes.

This section was formerly compiled as§ 32-705.

Effective Dates.

Section 3 of S.L. 2003, ch. 250 provided: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect when the Governor enters an order, and files it with the Secretary of State, calling or ordering members of the Idaho National Guard to state active duty or to Title 32 U.S.C. duty other than for training as defined in Section 46-409, Idaho Code, or on July 1, 2003, whichever occurs first.”

Agreements Between Parents.

Previous agreement between husband and wife does not prevent court from making order for custody of minor children. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1951). As between husband and wife, agreement touching custody and maintenance of children will be respected and enforced, but such agreement cannot, as against the children, divest either parent of the duty imposed upon both by law to support and educate them. Beard v. Beard, 53 Idaho 440, 24 P.2d 47 (1933).

Consent decrees must conform to the agreement of the parties subject to such inherent powers of the court on matters concerning the welfare of the child and subject to its continued jurisdiction to modify support payments under changed conditions. Fisher v. Fisher, 84 Idaho 303, 371 P.2d 847 (1962).

The court’s jurisdiction over minor children is not lost by a property settlement agreement between the parents which is incorporated into the divorce decree. Patton v. Patton, 88 Idaho 288, 399 P.2d 262 (1965).

The husband’s delinquency in payments to the wife for support of their children was an obligation due the wife to compensate her for her past support of such children, but agreement by her to release former husband from back support payments for a consideration was valid and enforceable. Andersen v. Andersen, 89 Idaho 551, 407 P.2d 304 (1965).

Application.

When two minor children were orphaned when their parents were killed in a car accident, the maternal grandmother was named testamentary guardian in accordance with the terms of the parents’ will. When petitioner, paternal grandparents, petitioned for guardianship, the magistrate erred by appointing them as co-guardians; petitioners had no rights under this section, which only applies to divorce proceedings. Heiss v. Conti (In re Doe), 148 Idaho 432, 224 P.3d 499 (2009).

Attorney Fees.

Where mother acted on behalf of child in defending against father’s motion to modify the original decree of divorce, inasmuch as father sought modification of his obligation to continue the payments of child support, and where, at such time, child was mother’s adjudged dependent and father was moving party, mother was entitled to reasonable attorney fees and allowance of costs. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Best Interest of Child.

In determining the custody of a minor child, the child’s welfare and best interest is of paramount consideration. Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000 (1941); Fish v. Fish, 67 Idaho 78, 170 P.2d 802 (1946).

In determining custody and right of visitation of minor child, the welfare and best interest of such child is paramount. Arkoosh v. Arkoosh, 66 Idaho 607, 164 P.2d 590 (1945).

It is well settled, in this jurisdiction, that in awarding the care, custody and education of minor children, the best interest and welfare of the children is of paramount importance. Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323 (1948).

Court, in exercising its discretion in awarding custody of children, will consider as a paramount factor the welfare and best interest of the child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

The welfare and best interest of the minor children are of paramount consideration. Empey v. Empey, 78 Idaho 25, 296 P.2d 1028 (1956).

The welfare and best interests of the minor children are the matters of paramount importance to be considered by the court in determining their custody. Schmitt v. Schmitt, 83 Idaho 300, 362 P.2d 884 (1961). The welfare of the child is the paramount consideration and controlling factor in determining the child’s custody. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

The personal desires of the parent and even the wishes of a minor child must yield to the determination of what is best for the child’s ultimate good. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

Of paramount importance in determining custody is the children’s welfare and best interests. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

In determining custody, a child’s welfare and best interests are of paramount importance. Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987).

Magistrate was within his discretion in awarding the mother sole legal and physical custody of the children where the record contained substantial and competent evidence that the father’s refusal to communicate with the mother, as well as the difficulty of the joint custodial arrangement, were detrimental to the children’s best interests. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

It is appropriate for a trial judge to review the living arrangements of a child as part of a review of what is in the best interests of the child and that such a review may include a consideration of persons with whom a parent intends to reside. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

When one parent refuses to communicate with the other in a joint custody setting, where essential decisions involving the care of the children are continually necessary, the best interests of the children are obviously detrimentally affected. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

After the husband pleaded guilty to domestic battery, his wife left Idaho and fled to Oregon with their minor child. The magistrate court abused its discretion by ordering the wife to return with their child to Boise or surrender child custody. It was error for the magistrate court to fail to analyze the child’s best interest. Schultz v. Schultz, 145 Idaho 859, 187 P.3d 1234 (2008).

Magistrate erred in finding that no “best interest” evidence had been presented by the father. Idaho law does not require the testimony of a psychologist, a doctor, a teacher or any other particular witness in order to establish that a change in the shared custody schedule would be in the best interest of a child. Neither is there a requirement under Idaho law that a child behave badly in the current custody arrangement before a change in visitation in the best interest of the child is warranted. Drinkall v. Drinkall, 150 Idaho 606, 249 P.3d 405 (Ct. App. 2011).

District court’s determination that it was in the best interest of a child to reside primarily in Idaho was not an abuse of discretion: the child’s adjustment to home, school, and community favored shared custody in Idaho, a move to Nevada with the child’s mother would not have had a positive effect on the child’s relationship with the child’s father, and custody in Idaho promoted more continuity and stability in the child’s life. Clair v. Clair, 153 Idaho 278, 281 P.3d 115 (2012).

Child Custody Evaluator.

Child Support.

A custody modification conforming to a child custody evaluator’s recommendations was proper where the evidence in the evaluation as it applied to the pertinent statutory factors was correctly weighed; when the mother and father agreed to resolve custody in accordance with the evaluator’s recommendations, they agreed to allow his evaluation to be the only evidence the trial court considered in making its decision as to the children’s best interests. Firmage v. Snow, 158 Idaho 343, 347 P.3d 191 (2015). Child Support.

Husband who earned an average of $4,000 a year was required to pay the sum of $28 each month for the support of each of his children, and in the event of sickness to pay the hospitalization and doctor expenses. Empey v. Empey, 78 Idaho 25, 296 P.2d 1028 (1956).

The court is authorized to make provision for the support and education of the children of the marriage and, in so doing, to subject the community property to that purpose and to require security therefor and enforce the same by receiver or by any other remedy applicable to the case. The establishment of a trust of community property was an applicable remedy and a method of subjecting that property to the support and education of the children, and was within the jurisdiction of the court. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

In fixing the amount to be paid under the obligation of child support, of primary consideration is the financial ability of the payor. Additionally, in fixing the amount of the payments for child maintenance, not only should the order be predicated upon the payor’s ability to pay, but upon the necessity of the child or children. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

In considering the amount to be awarded for support, regard should be given to the social position of the persons involved and award be sufficient to permit a standard of living commensurate with that to which they were accustomed; however, the necessities of the children and the financial ability of the payor to provide are primary considerations. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

In view of trial court’s uncertainty as to the future earnings of the divorced husband, its award of $100 per month for the maintenance of each of four children would not be disturbed. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

— Modification of Support Provisions.

Where divorce is granted for offense of husband and award is made for support of wife and child and thereafter an application is made under the provisions of this section for a modification of the decree upon the ground of permanent change in the circumstances of the parties since the entry of the decree, the court will, in the exercise of sound judicial discretion, make such modification of the decree as justice and the changed circumstances of the parties demand. Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991 (1938).

The authority to modify a divorce decree so as to increase the maintenance allowed for a minor child could be exercised only upon a showing of material, permanent, and substantial change in the circumstances and conditions of the parties. Fish v. Fish, 67 Idaho 78, 170 P.2d 802 (1946).

Where decree “approved, confirmed and ratified” a property settlement agreement providing for support of children at the amount of $150 monthly, the court had jurisdiction thereafter to enter an order reducing amount to $125 monthly. In re Martin, 76 Idaho 179, 279 P.2d 873 (1955).

A modification of child support provisions on ground of change of circumstances where father was injured and child had a car and a job would not be reversed without a clear abuse of the trial court’s discretion. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Constitutionality.

If in the future it could be shown that the allowance specified was not adequate to provide maintenance such as the children were entitled to, and the parent’s income justified an increase, trial court which granted the original award had authority to grant appropriate relief. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964). Constitutionality.

Subsection (3) of this section is facially constitutional and constitutional as applied to the father, where the magistrate, who granted the parties shared physical custody of the children, gave due regard to the father’s parental rights, but balanced them with the competing interests of the children. Hernandez v. Hernandez, 151 Idaho 882, 265 P.3d 495 (2011).

Custody.

Custody of minor children should be awarded to one of the parents unless both are unfit or unable to care for them. Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (1919).

In case of doubt, custody of a child of tender age or a girl will be awarded to the mother. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Mother will not be deprived of custody of a child unless the proof clearly shows that she is an unfit person for custody of the child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Father has duty to provide for child, hence failure to fulfill duty will be weighed against him in determining custody of child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Superior right of mother to custody of child cannot be defeated merely on the argument that father has a superior economic position. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

All other considerations being equal, a mother will not be deprived of the custody of a child of tender years unless it clearly appears that the welfare of the child demands it. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

A child’s preference for one parent becomes particularly important as the child grows older and more intelligent and, in determining a child’s custody, a child’s preference should be considered as persuasive, although not controlling. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

Where children in the custody of one parent have attempted to see the other parent, the court must weigh the effects of this behavior, together with the ability of the parents to cope with the situation, the hostility which would be generated by each custody choice and all other relevant circumstances. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

Although uprooting the child every two weeks to travel and live in alternating locations with alternating people raised serious concerns as to the welfare of the child, there was evidence in the record from the expert supporting the decision of the trial court; therefore, it did not abuse its discretion when it ordered equal joint physical custody between the mother and father. State v. Hart, 142 Idaho 721, 132 P.3d 1249 (2006).

Magistrate did not err in considering the parents’ employment schedules where the parties’ work schedules and need for third-party child care were relevant to the court’s inquiry, especially given that the father worked a night shift; the trial court considered the other relevant factors even though it gave the father’s work schedule great weight. Silva v. Silva, 142 Idaho 900, 136 P.3d 371 (Ct. App. 2006).

In a child custody determination, a magistrate judge heard testimony about certain factors, and the magistrate judge made findings, but it was clear that neither party substantially exceled above the other as a parent. The magistrate judge made his determination of custody based on substantial evidence, and the magistrate judge did not abuse his discretion. Navarro v. Yonkers, 144 Idaho 882, 173 P.3d 1141 (2007). Award of sole physical custody of two children to the mother was proper where she had served as the children’s primary caregiver their entire lives, she was best able to meet their physical and psychological needs consistently, and the father inappropriately involved the children in his conflict with the mother. Danti v. Danti, 146 Idaho 929, 204 P.3d 1140 (2009).

Under subsection (1), the magistrate judge’s decision to award the father primary physical custody of the children was based on objectively supportable grounds because 1) there was substantial evidence to support the magistrate judge’s finding that the mother’s use of medications might impair her ability to provide proper parental care; 2) the mother did not alert the supreme court to any evidence which called into question the father’s ability to parent; and 3) the magistrate judge was not biased. Schneider v. Schneider, 151 Idaho 415, 258 P.3d 350 (2011).

By awarding the mother the right to care for the children on certain mornings at the father’s home, the magistrate judge in effect awarded her the right to enter and use the father’s separate property, which was impermissible under§ 32-712, as the court had no power or authority to award all or any part of the father’s separate property to the mother as part of the divorce decree. Schneider v. Schneider, 151 Idaho 415, 258 P.3d 350 (2011).

— Award Held Improper.

Evidence concerning mother’s epilepsy, which was controlled to a degree through medication, her need for nine to ten hours of sleep per night, her migraine headaches and her post-seizure lack of energy, did not sufficiently support court’s finding that it was in the best interest of the children to vest custody in the father, and award of custody to father constituted an abuse of discretion. Moye v. Moye, 102 Idaho 170, 627 P.2d 799 (1981).

Where the trial court relied almost exclusively in its findings of fact upon evidence that was extremely remote in time, and there was no nexus between the mother’s past conduct and present behavior on the mother-child relationship, the magistrate relied upon impermissible factors in his fitness determination under subdivision 5 (now subdivision (1)(e)) of this section, and he failed to make findings based on substantial evidence relevant to the best interests of the child; therefore, the decision of the magistrate court was vacated and the matter remanded for redetermination of the custody question. Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987).

— Award Held Proper.

Awarding custody of child of tender years to its father on evidence that father was better fitted to care for and educate child did not constitute abuse of discretion authorizing appellate court to interfere. Olson v. Olson, 47 Idaho 374, 276 P. 34 (1929).

Trial court properly concluded that the interests and welfare of the children would best be served by allowing them to remain with their father, where evidence established that their mother had indulged in scandalous conduct and that both boys asked to live with their father. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964).

It was not an abuse of discretion to award custody of an eleven-year-old daughter and three-year-old son to the mother and permit twenty-year-old and nineteen-year-old sons to choose the parent with whom they desired to live. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967). Awarding the legal custody and control of minor children to the husband and actual custody to the wife under the particular circumstances was not an abuse of discretion. Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968).

There was no abuse of discretion in awarding custody of the children to the wife on evidence that they were much happier and more well-adjusted when they were in her sole care than when they were with the husband and on failure of the husband, who was a military officer, to show how he could care for the children on a permanent basis, notwithstanding his being subject to military orders at all times. Barker v. Barker, 92 Idaho 204, 440 P.2d 137 (1968).

In a custody hearing involving a four-year-old retarded child, evidence that the mother had been married and divorced six times, had travelled from state to state in her employment, and had been employed by a circus, did not establish that the child would clearly be better off with the father as opposed to the mother. Barrett v. Barrett, 94 Idaho 64, 480 P.2d 910 (1971).

Magistrate did not abuse his discretion in awarding custody of the two sons to their father where the magistrate made extensive findings on the issue of custody, including finding as to fitness of both parents, and those findings were supported by substantial, although conflicting evidence. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

Magistrate’s conclusions that child was educationally deprived, that mother unreasonably excluded biological father from son’s life, that mother could not properly meet son’s needs as an adolescent, that mother’s visitation rights should be limited and that son’s best interests would be served under this section if both his legal and physical custody were awarded to biological father, were supported by substantial evidence. Miller v. Mangus, 126 Idaho 876, 893 P.2d 823 (Ct. App. 1995).

In a divorce action, the magistrate did not abuse his discretion in awarding primary physical custody of the parties’ child to the husband, because the wife demonstrated disregard for the court’s orders, she demonstrated a propensity for dishonesty, she had difficulty controlling her anger and had sometimes unreasonably prevented visitation between the father and the child, she sometimes drank to excess and used alcohol together with prescription antidepressants, and she suffered intermittently from depression. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

— Divided Custody.

While divided custody of children should not be encouraged, nevertheless an award of divided custody is not an abuse of discretion where justifying circumstances appear. Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961).

The trial court did not abuse its discretion in granting divided custody of the children in view of the mother’s plan to remove some distance from the place of the father’s employment causing the court to entertain an apprehension of estrangement of the children from the father. Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961).

An award of the sole care, custody and education of the minor children of the parties to the plaintiff, subject to reasonable visitation rights of the husband, with a proviso that if she move outside of her husband’s residence area, he should have the custody of the children for a two-month period during the school vacation, was not an abuse of discretion. Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961).

Where the court found each of the parties to be a fit and proper person to be awarded the care, custody and control of the children, the best interests of the children would not be adversely affected by permitting the children, whose custody was awarded to the mother, to visit their father for at least 60 days during the summer months. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964). Magistrate court abused its discretion in ordering that physical custody of a child be exchanged every three weeks, where the mother and the father lived a distance of 913 miles from each other. Martinez v. Carrasco, 162 Idaho 336, 396 P.3d 1218 (2017).

This section does not mandate equal time with each parent or alternating physical custody back and forth. Martinez v. Carrasco, 162 Idaho 336, 396 P.3d 1218 (2017).

— Factors Considered.

Consideration of the relationship between children and their paternal grandparents was valid since it reflected on the children’s adjustment to their home and community — factors which this section lists as factors which may be considered. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

The wishes of young children should not constitute the determining factor in a decision as to custody; the magistrate did not violate this rule of law where he stated that due to the ages of the children, their wishes, while persuasive, were not considered as the dominant reason for the custody determination and were not dispositive of the issue. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

Mother’s actions in removing her son from the state and, in the magistrate’s evaluation, holding him hostage, reflected badly on her overall integrity, as did lying about the reasons she left the state and where magistrate determined that the mother had exaggerated the degree to which the father had a violent temper in an attempt to justify her removal of the child from the state, in considering this issue, along with the factors set out in this section, the magistrate did not abuse its discretion in granting custody to mother and father with father being awarded primary residential custody. Dymitro v. Dymitro, 129 Idaho 527, 927 P.2d 917 (Ct. App. 1996).

Magistrate judge did not err in considering a wife’s adultery in deciding whether the wife or the husband was entitled to custody of the minor children; the judge did not award the husband custody to punish the wife, nor did the judge find that the adultery rendered the wife an unfit parent, but the judge did find that the wife’s openly adulterous relationship had a negative impact on the family, which weighed in favor of the husband being awarded custody. Gustaves v. Gustaves, 138 Idaho 64, 57 P.3d 775 (2002).

Magistrate did not wrongly base his decision to award the mother sole legal and physical custody of the children based on the father’s homosexuality. There were no allegations here that the children had been harmed by the father’s homosexuality, and the magistrate judge did not rely on that factor in his custody determination. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

Homosexual parent may not be denied custody of a child unless there is sufficient evidence presented to show that the parent’s homosexuality is having a negative effect on the child and that the parent’s custody is not in the best interests of the child. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

Sexual orientation, in and of itself, cannot be the basis for awarding or removing custody. Only when the parent’s sexual orientation is shown to cause harm to the child, such that the child’s best interests are not served, should sexual orientation be a factor in determining custody. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

— Modification of Custody and Visitation Provisions.

The list of factors in subsection (1) for use in determining the best interest of a child is not exhaustive or mandatory, and courts are free to consider other factors that may be relevant. Lamont v. Lamont, 158 Idaho 353, 347 P.3d 645 (2015). — Modification of Custody and Visitation Provisions.

Order modifying divorce decree by awarding custody of children to maternal grandparents could not be affirmed in absence of evidence of fitness and willingness of such grandparents to have custody of the children, though evidence sustained finding that neither parent was entitled to custody. Brown v. Brown, 66 Idaho 625, 165 P.2d 886 (1946), overruled on other grounds, State Dep’t of Health & Welfare v. Slane, 155 Idaho 274, 311 P.3d 286 (2013).

Custody orders are necessarily subject to the control of the court, do not become final, and may be modified or changed from time to time as the best interests of the child may appear. Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947).

No clear abuse of discretion on the part of the trial court appears in modifying a decree of divorce awarding the mother custody of a child so as to award its custody during the summer vacation to the father. Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947).

A divorce decree granting a minor child’s custody to the mother during the school year and to the father during the summer vacation was modified to give each parent the right of visitation and of making presents to said child while in the other parent’s custody. Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947).

Where custody of children was awarded wife in divorce decree and parties later entered into an agreement wherein the wife agreed to surrender the custody to the husband, the court could not sanction such modification until an application was filed showing a material, permanent and substantial change in circumstances and condition of the parties since the date of the original decree. Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323 (1948).

Where court modified divorce decree relative to care, custody and education of minor children, without apparent abuse of discretion, and the judgment was supported by abundant evidence, such judgment would not be disturbed. Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323 (1948).

Where father under original decree of divorce was awarded custody of son and was taking care of son in an excellent manner and where mother had visited son only a few times and, if awarded custody, would take the child out of the state, the trial court did not abuse its discretion in refusing to modify decree on petition by mother for custody of child. Jeppson v. Jeppson, 75 Idaho 219, 270 P.2d 437 (1954).

Where there was a marked improvement in the attitude of defendant mother of the child in regard to her responsibilities as a mother, it might be such a material permanent change in conditions as would warrant modification of the custody decree, especially where there was a finding that the physical and mental health of the child would be best protected by such change. McMurtrey v. McMurtrey, 84 Idaho 314, 372 P.2d 403 (1962).

Modification of a decree awarding custody of minor children to a parent who is a fit and proper person to have such custody, is proper where it appears that the custodial parent has contrived to prevent the other parent from seeing and visiting such children in the manner and spirit provided for in the decree and has shaken their love and affection for the other parent. Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963).

Where, subsequent to the divorce, the father moved to California, the mother remarried, her new husband was hostile to the father, and the mother sought to restrict the father’s visit with the children to one hour the second and fourth Mondays of each month in her home, there was a change of conditions, and it was not an abuse of discretion for the court to modify the decree with respect to the father’s visitation rights with respect to the children. Dawson v. Dawson, 90 Idaho 234, 409 P.2d 434 (1965). Where, on a finding that the wife drank heavily, spent her evenings on late dates, and associated with her mother whom the court considered a bad influence, the divorce court awarded custody of the infant daughter of the parties to the husband, who subsequently remarried a widow with one child and who cared for the daughter, denial of the wife’s petition for change of custody on the ground that she had remarried and quit her drinking was not an abuse of discretion. Bryant v. Bryant, 92 Idaho 76, 437 P.2d 29 (1968).

Decision of trial court changing custody of minor children of divorced parents from father to mother was abuse of discretion where father and present wife were and had been fit and proper persons to have custody; where mother and her present husband, though apparently rehabilitated, had not in the past been fit and proper persons, and might retrogress; where change was ordered partly for welfare of mother, rather than children; and where mother intended to remove children from state and court’s jurisdiction. Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969).

Petition for modification of decree of child custody will not be granted unless petitioner shows that a material, permanent and substantial change in the circumstances and conditions of the parties has occurred since the date of the original decree and such change makes modification of the decree appear to be in the best interest of the child’s welfare. Adams v. Adams, 93 Idaho 113, 456 P.2d 757 (1969).

Where there was no evidence to support the trial court’s modification of the custody provision of the divorce decree other than the desire of the plaintiff and the fifteen-year-old daughter that custody be transferred, and where the record and pleadings showed no material, permanent or substantial change in the conditions and circumstances of either party, such change in custody was an abuse of the discretion of the trial court. Strain v. Strain, 95 Idaho 904, 523 P.2d 36 (1974).

Where a custody change has been requested, the court must look not only for changes of condition which are material, permanent and substantial, but also must thoroughly explore the ramifications, vis-a-vis the best interests of the child, of any change that is evident. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

Where court found, following default divorce decree against father, that the two older children of five minor children in the custody of the mother were absent from school for a substantial amount of time despite conferences between school officials and mother, that the children did not make normal advancement with classmates and that father had remarried and was able to provide children with suitable home environment to foster improved educational achievement, this record indicated that material, permanent and substantial change of circumstances had occurred since default divorce decree and that the best interests of children would be served by awarding permanent custody to father. Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1980).

Where mother represented that third party had facilitated a negotiated child custody settlement and asked magistrate to enter order resolving the custody issue based on third party’s recommendations and testimony and order was entered without objection, mother was foreclosed from attacking the sufficiency of the evidence supporting that order; custody modification affirmed. Ratliff v. Ratliff, 129 Idaho 422, 925 P.2d 1121 (1996). Acts and conduct of the custodial parent, resulting in the alienation of the love and affection which children naturally have for the other parent, is a vital and very serious detriment to the welfare of such children and is grounds for modification of the decree with respect to such custody. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

Despite the absence of a request by the parties to modify the holiday visitation schedule, the magistrate judge was within his discretion to do so. The magistrate judge properly concluded that the mother’s move constituted a material change in circumstances that required a revision of the visitation schedule to serve the best interests of the children to reduce the time they spend riding in cars. Nelson v. Nelson, 144 Idaho 710, 170 P.3d 375 (2007).

A trial court is without authority to modify a child custody order if the movant is in contempt for nonpayment of support, unless the movant shows that, for reasons beyond the movant’s control, purging himself or herself of the contempt is impossible. Rodriguez v. Rodriguez, 150 Idaho 614, 249 P.3d 413 (Ct. App. 2011).

Custody modification conforming to a child custody evaluator’s recommendations was proper where the children’s interactions with their mother, father, and siblings supported the custody modification; the children were over-exposed to parental conflict, primarily caused by the father, and the trial court found all the evidence showed that the father’s behavior was destabilizing to the children. Firmage v. Snow, 158 Idaho 343, 347 P.3d 191 (2015).

Magistrate court abused its discretion when it altered the original custody arrangement to award the father primary physical custody of the parties’ three youngest children. The evidence was insufficient to show that the mother engaged in alienating behaviors, and the change to the summer schedule and the mother’s move to another town 30 minutes away were not material and substantial changes in circumstances that warranted a change in custody. Doe v. Doe, 161 Idaho 67, 383 P.3d 1237 (2016).

Magistrate judge erred in modifying a child custody plan, changing primary custody during the school year from the mother to the father, because, although the magistrate judge correctly found that there had been a material, permanent, and substantial change in circumstances, the changed circumstances did not warrant a change in custody for the best interests of child, as the child’s changes in schools were in the child’s best educational interests as part of the school district’s gifted and talented program. Father consented to the child’s enrollment in the program; and there was no evidence in the record that the mother’s residential moves had any impact on the child, or that the mother was doing anything contrary to the child’s best interests. Searle v. Searle, 162 Idaho 839, 405 P.3d 1180 (2017).

While the material, permanent and substantial change standard to modify a custodial order is a sound legal principle, care must be exercised in its application. The court must look not only for changes of condition or circumstance which are material, permanent and substantial, but also must thoroughly explore the ramifications, vis-/Ga-vis the best interest of the child, of any change which is evident. Woods v. Woods, 163 Idaho 904, 422 P.3d 1110 (2018).

The acts and conduct of the custodial parent, resulting in the alienation of the love and affection which children naturally have for the other parent, is a vital and very serious detriment to the welfare of such children and is grounds for modification of the decree with respect to such custody. Woods v. Woods, 163 Idaho 904, 422 P.3d 1110 (2018).

— Temporary Custody.

The magistrate court did not abuse its discretion in finding that there was no substantial and material change as a result of the animosity between the mother and the father, where there was evidence that the inter-spousal animosity had existed since the original custody agreement. Woods v. Woods, 163 Idaho 904, 422 P.3d 1110 (2018). — Temporary Custody.

The district court may enter an ex parte order granting temporary custody to a noncustodial parent if the record before him indicates that such an order is necessary and is in the best interests of the children, and if the order is followed within ten days by a full hearing on the merits of the noncustodial parent’s motion. Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1980).

If adequate justification for an ex parte order temporarily transferring custody to a noncustodial parent is shown, and if a full hearing on the question of which parent should maintain custody pending a motion to modify a custody decree is provided within ten days, no due process violation appears. Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1980).

The district court did not abuse its discretion by issuing an ex parte order awarding temporary custody of children to the natural father for a period not exceeding ten days pursuant to the plenary authority to this section, since the possibility existed that the mother would remove the couple’s children from the state and since the order merely shifted custody until a full hearing would be held. Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1980).

— Tender Years Doctrine.

Where the magistrate did not determine that all other considerations were equal with respect to determination of custody as between the two parents, there was no need to apply the “Tender Years Doctrine” favoring mother’s custody of young children. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

— Visitation Rights.

Where the custodial parent refuses to recognize the visitation right of the other, or obstructs the exercise thereof, the court is required to define such right in detail and demand and enforce such regulations as may become necessary to secure its observance. Kirkwood v. Kirkwood, 83 Idaho 444, 363 P.2d 1016 (1961).

In view of the fact that the children will need the support payments decreed by the court, such payments cannot be withheld as a means of enforcing the former wife’s compliance with the court’s visitation order, but such right of visitation must be enforced by other remedies; therefore, an order authorizing clerk of court to withhold support payments upon protest by the former husband of former wife’s violation of visitation order must be stricken. Kirkwood v. Kirkwood, 83 Idaho 444, 363 P.2d 1016 (1961).

There was no abuse of discretion on the part of the trial court in decreeing that the two-week period of visitation with the children during summer vacation away from the respondent’s home, would have to be within the jurisdiction of the state of Idaho to serve the welfare and best interests of the children. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

Magistrate judge did not abuse his discretion in ordering that the father’s homosexual partner not reside at the home when the children were present for visitation. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

Disability.

Discretion of Court.

Failure of a magistrate judge to explicitly notify mother of her rights under subsection (2) was a harmless, technical violation, as the record showed that she was on notice that the effects of any disability that she suffered from were at issue and she was provided an opportunity to present evidence on the issue of her use of medications. Schneider v. Schneider, 151 Idaho 415, 258 P.3d 350 (2011). Discretion of Court.

Question as to disposition of children is, in the first instance, in the discretion of trial court, and, unless such discretion is abused, judgment will not be disturbed. Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94 (1917); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924); Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000 (1941); Fish v. Fish, 67 Idaho 78, 170 P.2d 802 (1946).

When the disposition of a minor child has been committed to the discretion of a trial court, unless such discretion is clearly abused, the judgment will not be disturbed, the same being true when custody is changed by modification of the decree. Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947).

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. Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Ct. App. 1984).

Under this section the disposition of the custody of minor children of divorced parents is essentially committed to the sound legal discretion of the trial court, and its judgment will not be disturbed unless such discretion is clearly abused. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962).

An application for modification of a decree awarding child support upon the ground of a material permanent change in the circumstances of the parties since the entry of the decree is addressed to the sound judicial discretion of the trial court. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

In a divorce action, the awarding of custody of the child, as well as modification of an existent decree, rests in the sound discretion of the trial court in the first instance, and a decree awarding custody will be upheld in the absence of an abuse of discretion. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

In a divorce action an abuse of discretion occurs when the evidence is insufficient to support a finding that the interests and welfare of the child will best be served by changing the custody of the child. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

The question as to custody of children is committed, in the first instance, to the discretion of the trial court, and unless such discretion is abused, the judgment in respect to custody will not be disturbed on appeal. Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964).

The trial court has a wide latitude of discretion under this section concerning the question of the custody of minor children, and its judgment will not be disturbed unless such discretion is clearly abused. Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (1967).

The question of custody of minor children of parents being divorced is, in the first instance, committed to the discretion of the trial court, and its determination of that issue will not be disturbed on appeal in the absence of an abuse of that discretion. Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1963).

Supreme court will not attempt to substitute its judgment and discretion for that of the trial court except in cases in which the record reflects a clear abuse of discretion by the trial court. Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969).

Questions of child custody are within the discretion of the trial court, and the supreme court will not attempt to substitute its judgment and discretion for that of the trial court except in cases where the record reflects a clear abuse of discretion where the evidence is insufficient to support a finding that the interest and welfare of the child will be best served by changing the custody of the child. Strain v. Strain, 95 Idaho 904, 523 P.2d 36 (1974). This section gives wide discretion to a judge regarding custody decisions; however, the court must avoid considering irrelevant factors. Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987).

If the court, within its discretion, decides that the best interests of the children demands a custody arrangement different from that recommended by experts chosen by the adversarial parents, then under the terms of this section it is empowered to do so. Milliron v. Milliron, 116 Idaho 253, 775 P.2d 145 (Ct. App. 1989).

Grandparents.

Grandparents’ appeal from an order denying them grandparent custody, under subsection (3) of this section, was moot because (1) the grandparents were appointed as their grandson’s guardians; (2) as guardians, the grandparents had custody of their grandson; (3) until the guardianship was terminated, a guardian’s right to custody of a minor was superior to that of the minor’s parent, under§ 15-5-209; and (4) granting the grandparents custody under subsection (3) of this section would not have given them any greater rights with respect to their grandson than they already had as his guardians. Doe v. Doe (In re Doe), 145 Idaho 337, 179 P.3d 300 (2008).

Subsection (3) merely grants an actual custodial grandparent the same standing as a parent for evaluating what custody arrangements are in the best interests of the child in a divorce action. Hernandez v. Hernandez, 151 Idaho 882, 265 P.3d 495 (2011).

In its analysis of “stable relationship” in subsection (3), a court should consider not only the time that a child resided with his grandparents, but also other factors, such as the provision of the child’s medical, educational, and mental health and other daily needs, consistency, dependability, and the overall nature of the relationship between the grandparents and the child. Overholser v. Overholser, 164 Idaho 503, 432 P.3d 52 (2018).

Greater Relationship.

Trial court erred in disregarding the presumption for joint custody and determining that mother’s greater relationship with child indicated that giving her sole legal and physical custody would be in the child’s best interests, where her greater relationship was primarily due to her illegal actions of absconding with the child to another state and obtaining a false domestic violence protection order there. Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007).

In General.

Child custody and support of minor children are incidents to the disposition of a divorce action. Baker v. Baker, 100 Idaho 635, 603 P.2d 590 (1979).

This provision provides a directive for the trial court to determine the best interests of the children when making a custody decision, setting forth relevant, non-exhaustive factors, to aid in making its determination. Brownson v. Allen, 134 Idaho 60, 995 P.2d 830 (2000).

Jurisdiction of Court.

Jurisdiction of care and custody of infant children is committed to district courts and judges thereof. In re Miller, 4 Idaho 711, 43 P. 870 (1896); Gifford v. Gifford, 50 Idaho 517, 297 P. 1100 (1931). This section and§ 32-704 give the district court jurisdiction to award custody of children. Kirkpatrick v. Kirkpatrick, 52 Idaho 27, 10 P.2d 1057 (1932).

Denial of divorce does not deprive court of power to decree custody of children or maintenance of wife. Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731 (1938).

In determining custody of minor child and right of visitation of such child in divorce action, the district court has complete and continuing jurisdiction. Arkoosh v. Arkoosh, 66 Idaho 607, 164 P.2d 590 (1945).

Jurisdiction to determine all matters in any way affecting the welfare or the best interest of the child continues, in the suit in which the court first obtained jurisdiction, until the child reaches his majority. Arkoosh v. Arkoosh, 66 Idaho 607, 164 P.2d 590 (1945).

District courts have exclusive original jurisdiction of all actions and proceedings in divorce actions, and may make all necessary orders in such proceedings, including the custody of minor children. Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947).

District courts have jurisdiction to provide for custody of children in event of separation or divorce of parents. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Under this statute, a court may make a valid order for support of children after a decree is entered even though no provision for support is made in the decree. In re Martin, 76 Idaho 179, 279 P.2d 873 (1955).

It was proper and well calculated to protect the best interests of the children for the trial court to retain jurisdiction to review the question of custody at the end of a six-month period. Robertson v. Robertson, 81 Idaho 547, 347 P.2d 337 (1957).

The jurisdiction of the court continues after granting divorce for the protection of the welfare of children of divorced parents. Stratton v. Stratton, 87 Idaho 118, 391 P.2d 340 (1964).

The permissive rather than mandatory terminology of this section indicates a recognition of juvenile or probate court jurisdiction in the area of guardianship of neglected, abandoned, and delinquent children, even though the children be of a marriage dissolved by divorce. Spaulding v. Children’s Home Finding & Aid Soc’y, 89 Idaho 10, 402 P.2d 52 (1965).

The jurisdiction of the trial court over child custodial and visitation rights is a continuing one and should be exercised by the court in such detail and specificity of order as may be necessary to carry out the intent of the court. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Since a district court has jurisdiction not only of the divorce proceedings, but continuing jurisdiction over questions involving the custody of minor children, it was acting within its jurisdiction when it found divorced wife in contempt for refusing divorced husband his child visitation rights, so that a writ of prohibition was improperly sought, improvidently issued, and was quashed. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Where both parties in a child custody proceeding agree to treat the former petitions as properly filed before the court and proceed accordingly, the court is not divested of jurisdiction. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

Where the mother and father both consented to the reinstatement of their petitions to modify custody and the husband proceeded to trial, the magistrate judge had continuing jurisdiction to hear matters of child custody and could reset the petitions to modify for hearing. McGriff v. McGriff, 140 Idaho 642, 99 P.3d 111 (2004).

— Domicile of Child.

Where both parents submit to the jurisdiction of a court of Idaho and litigate the question of custody of children, the court has power to determine the custody of a child domiciled in Washington. Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52 (1933). The jurisdiction of the courts of this state may be invoked where the welfare of children is at issue, even though their domicil in this state be temporary. Schmitt v. Schmitt, 83 Idaho 300, 362 P.2d 884 (1961).

Where mother, when she commenced her action in Gooding county district court for custody of the two minor children, was residing with her children in the state of Idaho, such children’s custody having been previously awarded by an Alaskan district court to the father with reasonable right of visitation granted to the mother, the district court had jurisdiction to hear and determine the cause of action alleged in the complaint relating to the custody of the minor children since, if the child is actually within the state, that state’s courts may determine the child’s custody although the child’s legal domicil is elsewhere, the question being not one of jurisdiction but whether jurisdiction should be exercised, and if so, to what extent. Schmitt v. Schmitt, 83 Idaho 300, 362 P.2d 884 (1961).

— Domicile of Parent.

Court erred in entering an order preventing the mother from moving out of state, even without the child. Under this section, a trial court does not have unlimited authority to order the parents to do anything that the trial court believes is in the best interests of the child, and the trial court has no authority to order the mother to reside in any particular geographical location. Allbright v. Allbright, 147 Idaho 752, 215 P.3d 472 (2009).

In custody cases, an Idaho court may not dictate where a parent will live. Rather, the court may only issue orders for the custody and care of children in view of the location or relocation of the parents’ places of residence. Markwood v. Markwood, 152 Idaho 756, 274 P.3d 1271 (Ct. App. 2012).

— Modification of Decree.

Under the provisions of this section, the direction of the care, custody and education of minor children remains with the trial court, and the court may at any time modify an order relative thereto, when it appears that such action is for the best interest and welfare of such children. Mauldin v. Mauldin, 68 Idaho 64, 188 P.2d 323 (1948).

Retention of jurisdiction for the purpose of modifying the judgment at any time after its entry, as regards the provisions of child custody, care and education until the child attains the age of majority, is established, especially by certain provisions of this section. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

After divorce proceedings, the court retains jurisdiction over minors until they reach majority in order to modify the decree to better accommodate the welfare of such children; however, a divorce decree should not be modified unless and until a permanent material change of circumstances is alleged and proven. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

The fact that the child is a minor is not the sole criterion of a court’s power or jurisdiction to modify the child maintenance obligations of the original decree; rather, the fact of dependency of the child constitutes the governing criterion to be considered in imposing the obligation and thereafter in continuing, modifying or terminating such obligation. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Under this section, trial court retains jurisdiction to modify maintenance awards, if such be warranted by the facts. Neilsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964). The district court has continuing jurisdiction to modify a decree of custody whenever changed circumstances may require, and the supreme court will consider this continuing jurisdiction when called upon to evaluate the district court’s original custody award. Loveland v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967); Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967).

Since no rule of finality exists in the determination of the right to custody of children, a district court retains continuing jurisdiction to modify the decree of custody whenever required by changed circumstances to insure the best interests and welfare of the children. Prescott v. Prescott, 97 Idaho 257, 542 P.2d 1176 (1975).

A trial court has continuing jurisdiction over minor children in a divorce and, regardless of any previous agreements by the parties, a divorce decree may be modified to provide the child support if a permanent and material change in circumstances is found. McFarlin v. Crawford, 97 Idaho 458, 546 P.2d 855 (1976).

Where the Idaho district court was the court that filed the original divorce decree, which included a stipulation regarding custody and visitation of the children, the Idaho district court was the most appropriate forum in which to file the motion to modify the custody provisions of the original divorce decree, and the district court did not err in asserting jurisdiction on the basis of the court’s continuing jurisdiction under this section. Biggers v. Biggers, 103 Idaho 550, 650 P.2d 692 (1982).

Granting the father sole legal and primary physical custody of the parties’ son was in the son’s best interest because the mother’s conduct was directly affecting the son’s relationship with the father; the trial court had evidence of the mother’s three and one-half years of intransigence. Doe v. Doe (In re Doe), 149 Idaho 669, 239 P.3d 774 (2010).

Motion to Relocate.

Magistrate judge’s denial of a mother’s motion to relocate to another county did not constitute an abuse of discretion because the mother’s living arrangements, along with other factors outlined in this section, were relevant in determining the best interest of the children. Roberts v. Roberts, 138 Idaho 401, 64 P.3d 327 (2003).

Magistrate court did not abuse its discretion in denying a father’s motion for primary physical custody of the children, and finding that relocation with the mother was in the best interests of the children, where the magistrate court considered the statutory and relevant non-statutory factors and properly exercised its discretion to determine the amount of custodial time each parent would have with the children. Lamont v. Lamont, 158 Idaho 353, 347 P.3d 645 (2015).

Generally, a party seeking modification of a custody agreement has the burden of justifying a change in custody. That burden shifts to a party wishing to relocate, however, when relocating the child would violate the previous custody arrangement. However, once the parent seeking permission to relocate proves that relocation is in the child’s best interest, he or she will be allowed to move with the child. Lamont v. Lamont, 158 Idaho 353, 347 P.3d 645 (2015).

Non-parent Custody.

Permissive Intervention.

The Idaho supreme court’s decision in Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989) is not a key to the courthouse for non-parents seeking custody of minor children. Nor has the Idaho legislature, as of June 2017, adopted a statutory framework that would enable the unmarried partner of a biological mother to seek custody or visitation of an artificially conceived child. Doe v. Doe, 162 Idaho 254, 395 P.3d 1287 (2017). Permissive Intervention.

Allowing permissive intervention in child protection act (CPA) proceedings is inconsistent with the CPA and the statutes governing the termination of parental rights; therefore, Idaho Rules of Civil Procedure is inconsistent with the CPA and should not be applied in CPA actions. Roe v. State, 134 Idaho 760, 9 P.3d 1226 (2000).

Presumption Favors Natural Parent.

In custody disputes between a “nonparent” (i.e., an individual who is neither legal nor natural parent) and a natural parent, Idaho courts apply a presumption that a natural parent should have custody as opposed to other lineal or collateral relatives or interested parties. This presumption operates to preclude consideration of the best interests of the child unless the nonparent demonstrates either that the natural parent has abandoned the child, that the natural parent is unfit or that the child has been in the nonparent’s custody for an appreciable period of time. Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989).

Procedure.

No procedure is prescribed for vacating or modifying a provision in a divorce decree for the custody and maintenance of minor children. But a hearing should be had and oral testimony taken, and cause should not be disposed of on motion based on affidavits. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

— Burden of Proof.

The party seeking modification of a divorce decree has the burden of proof as regards change of conditions and circumstances of the parties. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

The relocating parent has the burden of proving that it would be in the child’s best interests to allow relocation of the child rather than to award primary physical custody to the other parent. Markwood v. Markwood, 152 Idaho 756, 274 P.3d 1271 (Ct. App. 2012).

— Cross-complaint.

Statute does not require that question of custody of children should be raised by cross-complaint, but is properly raised by motion and affidavits. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

— Evidence.

The welfare of minor children of a union dissolved by divorce is of such grave importance that the court should never be satisfied in determining such matters except upon production of the best evidence possible to be procured. Affidavits are not sufficient. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

An order modifying a decree for the custody and maintenance of minor children based only on conflicting affidavits was reversed with direction that witnesses be called to establish the facts relied on by the litigants and such other facts as the trial judge might deem pertinent to a decision looking to the best interests of the minor children, and that findings, conclusions and order be made accordingly. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

Although parents may be unfit or unable to care for their own children, they may still have an interest in their welfare and the environment in which they are placed, and they have a right to be heard before the final award is made. Brown v. Brown, 66 Idaho 625, 165 P.2d 886 (1946), overruled on other grounds, State Dep’t of Health & Welfare v. Slane, 155 Idaho 274, 311 P.3d 286 (2013). Court erred in excluding further evidence on grounds for divorce, where evidence might indirectly affect custody of the child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

In determining the best interests of the child the court should allow and consider all evidence relevant to a child’s interest, not just that evidence which has emerged since previous orders. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

Where facts affecting children’s welfare and existing at the time of the divorce or order awarding custody are not called to the attention of the court, particularly in divorce cases where the issues affecting custody have not been fully tried, the court upon a proper application may consider all facts and circumstances, including those existing prior to and at the time of the judgment or decree, in making a subsequent decree of custody. Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963).

Evidence concerning use of narcotics by husband and wife prior to their separation was not too remote in time to be relevant as character evidence in a custody suit. See Milliron v. Milliron, 116 Idaho 253, 775 P.2d 145 (Ct. App. 1989).

— Findings.

In determining a child’s custody, it is necessary that findings of fact and conclusions of law as to all relevant issues be made by the trial court and included in a record of appeal. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

A finding by the trial court that both parents are fit does not preclude the court from inquiring into each parent’s respective capabilities and their comparative fitness. Milliron v. Milliron, 116 Idaho 253, 775 P.2d 145 (Ct. App. 1989).

The trial court did not abuse its discretion in applying the factors set forth in this section where it made detailed findings on the child’s wishes, the adjustment to home, school, and community, the continuity and stability of the child, and the physical and mental health of all individuals involved, and where each relevant factor was discussed along with the pertinent conflicting evidence. Brownson v. Allen, 134 Idaho 60, 995 P.2d 830 (2000).

— Order Appealable.

Where, after judgment for divorce awarding custody of children to mother, father obtained an order permitting him to visit children and restraining mother or others from estranging children from him, such order was appealable, and writ of review would not lie thereto. Porter v. Steele, 7 Idaho 414, 63 P. 187 (1900).

— Request for Relief.

The request “for such other and further relief as the court deems proper” in the prayer of a husband’s petition to declare back support and alimony paid in full and to enjoin the wife and her attorney from levying execution for such back support was sufficient to enable the court to modify the decree as to future payments. Andersen v. Andersen, 89 Idaho 551, 407 P.2d 304 (1965).

— Testimony of Children.

It is within the discretion of the trial judge as to whether he will personally examine minor children, involved in custody proceedings, out of the presence of their contending parents. Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963).

Where judge had already talked to a ten-year-old son of both parties in the presence of the counsel, but without the presence of the parents, at a preliminary hearing, there was no error in the court’s refusal to interview the boy privately in chambers, in the face of evidence that father had tried to alienate the boy from the mother. Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963).

Judge properly ruled at time of custody hearing that a 16-year-old daughter who had testified at length as a witness for her father, the defendant, and exhibited her want of affection for her mother, was old enough to testify, in response to counsel’s suggestion that the judge interview her privately, especially since the judge offered to permit her return to the witness stand for further examination. Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963).

Religious Training.

In child custody cases the court should maintain an attitude of strict impartiality between religions and should not interfere with the religious training of a child absent compelling reasons for such action. Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977).

Where the trial court made no affirmative showing that the parents’ conflicting religious beliefs affected the general welfare of the child, the court’s order to the father to refrain from providing formal religious training to the daughter was an abuse of discretion. Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977).

The supreme court rejected the contention that, in the absence of a compelling reason, the favoring of religiousness over nonreligiousness in custody proceedings is permissible. Osteraas v. Osteraas, 124 Idaho 350, 859 P.2d 948 (1993).

Removal of Child from State.

The trial court can grant permission to the custodian of a child of divorced parents to remove the child from the state, if the child’s welfare as a normal human being and future citizen requires that such permission be given. Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000 (1941).

The evidence warranted an order granting the maternal grandmother, to whom was awarded the custody of the minor child of the divorced parents, permission to take the child out of the state of Idaho and into the state of Washington, where the grandmother had purchased a home, the environment of which was conducive to the health, happiness, and proper care and training of the child. Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000 (1941).

As a general rule, court should retain jurisdiction until decree of custody becomes final, but if best interest of child requires removal to another state, the court may grant such permission. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Permission to take a minor child beyond the jurisdiction of the court should only be granted where the best interests and welfare of the child clearly require it. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

A geographical relocation of minor children, such that the custody decree cannot be followed as previously entered, constitutes a substantial change of circumstances sufficient for the party seeking modification to be granted a hearing. Osteraas v. Osteraas, 124 Idaho 350, 859 P.2d 948 (1993).

Trial court did not err in awarding custody of a child to the mother on the condition that the mother not leave Idaho; although the mother wanted to move to Oregon with the child, the trial court’s conclusion that it was in the best interests of the child to stay in Idaho had a substantial, rational basis in the facts. Weiland v. Ruppel, 139 Idaho 122, 75 P.3d 176 (2003). Magistrate did not abuse his discretion by denying the mother’s request to modify the custody order and move with her child to Hawaii because: (1) the magistrate considered many factors relevant to whether the custodial parent should be permitted to relocate with a child, including the mother’s motive for the move, the extent alternative visitation would allow the father and his daughter to maintain a close relationship, and the effect of the move on the daughter’s extended family; (2) the magistrate did not apply an irrebuttable presumption against the physical separation of the child and the non-custodial father; and (3) the magistrate’s findings of fact and conclusions of law were supported by the evidence, including his finding that the mother interfered with the father’s relationship with the daughter and that the mother had a negative attitude toward the father. Bartosz v. Jones, 146 Idaho 449, 197 P.3d 310 (2008).

Pursuant to subsection (1), because the possibility of economic, emotional, and educational enhancements favored the move and because the mother had been the most consistent and stable parent, the mother retained primary physical custody of the children after she moved from Idaho to Oregon. Markwood v. Markwood, 152 Idaho 756, 274 P.3d 1271 (Ct. App. 2012).

Trial court did not err in awarding primary physical custody of the parties’ five children to the mother, with visitation to the father, and in permitting mother to move to Utah: mother had family in Utah, the move to Utah would allow the mother to stay at home with the children while earning an income by performing secretarial work for her brother, and mother planned on residing with her father. Peterson v. Peterson, 153 Idaho 318, 281 P.3d 1096 (2012).

Magistrate court’s decision permitting a mother to move out of state with the parties’ two children was affirmed: an explanation for rejecting the father’s expert testimony was not required, any error in allowing the mother’s expert to testify via Skype was harmless, and consideration that the move allowed the mother to be a stay-at-home parent was not improper. Reed v. Reed, 160 Idaho 772, 379 P.3d 1042 (2016).

Residence of Child.

While trial court could not require the mother or father to reside in a specific county, the court could provide that the child’s best interest required that the child reside with a specific parent. Kelly v. Kelly, — Idaho —, 451 P.3d 429 (2019).

Res Judicata.

Husband who secured modification of support amount could not thereafter assert that the court did not have jurisdiction to modify allowance. In re Martin, 76 Idaho 179, 279 P.2d 873 (1955).

Judgments affecting the custody, support and education of children, like other judgments, are conclusive upon the parties privies and the doctrine of res judicata is applicable thereto. However, this is not to be applied strictly in all determinations affecting the welfare of children of divorced parents. Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963).

The doctrines of estoppel by judgment and res judicata do not apply in an action to modify a decree of divorce where the specific issue is that of child support. Alber v. Alber, 93 Idaho 755, 472 P.2d 321 (1970).

Separation Agreement.

Where former wife was granted a judgment modifying divorce decree by awarding custody of two children to her as a result of material change in conditions, including her remarriage, which warranted transfer of custody to her, the supreme court was not bound by principles of res judicata and thus appropriately granted the former husband’s motion to supplement the appeal record and thus took judicial notice of former wife’s divorce subsequent to trial court proceedings. England v. Phillips, 96 Idaho 830, 537 P.2d 1019 (1975). Separation Agreement.

The trial court had jurisdiction to hear wife’s actions for child support after the child reached majority and for alimony where there was clear and convincing evidence that the parties in a separation agreement intended that the agreement be integrated and not be merged into the decree of divorce, and any presumptions to the contrary were rebutted. Spencer-Steed v. Spencer, 115 Idaho 338, 766 P.2d 1219 (1988).

Third Party Custodian.

It is clearly established under Idaho precedent, that where a child has been in the custody of a third party for an appreciable period of time (and thereby developed a bond with that person), the custody of the child will be awarded to that party if the best interests of the child so dictate; in this circumstance, neither “a mandatory showing of abandonment nor of patent unfitness” is necessary to overcome a natural parent’s right. Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989).

Idaho Law Review.

Idaho Law Review. — Idaho Custody Determinations: Limits on Standing, Comment. 50 Idaho L. Rev. 141 (2013).

Tailoring the Rules: Finding the Right Fit of Rules of Procedure to Suit Idaho Family Law, Comment. 52 Idaho L. Rev. 755 (2016).

ALR.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision. 59 A.L.R.3d 1337.

Parent’s physical disability or handicap as factor in custody award or proceedings. 3 A.L.R.4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent. 6 A.L.R.4th 1297.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights. 10 A.L.R.4th 827.

Religion as factor in child custody and visitation cases. 22 A.L.R.4th 971.

Right to attorneys’ fees in proceeding, after absolute divorce, for modification of child custody or support order. 57 A.L.R.4th 710.

Child custody and visitation rights arising from same-sex relationship. 80 A.L.R.5th 1.

Restrictions on parent’s child visitation rights based on parent’s sexual conduct. 99 A.L.R.5th 475. Divorce decree or settlement agreement as affecting divorced spouse’s right to recover as named beneficiary on former spouse’s individual retirement account. 99 A.L.R.5th 637.

Religion as factor in child custody cases. 124 A.L.R.5th 203.

Effect of parent’s military service upon child custody. 21 A.L.R.6th 577.

Parents’ work schedules and associated dependent care issues as factors in child custody determinations. 26 A.L.R.6th 331.

Validity of grandparent visitation statutes. 86 A.L.R.6th 1.

Availability and Use of Electronic Communication in Child Custody and Visitation Determinations. 96 A.L.R.6th 103.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — General Principles, Jurisdictional Issues, and General Issues Related to “Best Interests of Child”. 99 A.L.R.6th 203.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — Conduct or Condition of Parents; Evidentiary Issues. 100 A.L.R.6th 1.

Comment Note: In Camera Examination or Interview of Child in Custody Proceedings. 9 A.L.R.7th 6.

Cross References.

Uniform child custody jurisdiction and enforcement act,§ 32-11-101 et seq.

ALR.

§ 32-717B. Joint custody.

1. “Joint custody” means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents. The court may award either joint physical custody or joint legal custody or both as between the parents or parties as the court determines is for the best interests of the minor child or children. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.
2. “Joint physical custody” means an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.
3. “Joint legal custody” means a judicial determination that the parents or parties are required to share the decision-making rights, responsibilities and authority relating to the health, education and general welfare of a child or children.
4. Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children.
5. There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence as defined in section 39-6303, Idaho Code.

Joint physical custody shall be shared by the parents in such a way to assure the child a frequent and continuing contact with both parents but does not necessarily mean the child’s time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.

The actual amount of time with each parent shall be determined by the court.

History.

I.C.,§ 32-717B, as added by 1982, ch. 311, § 3, p. 776; am. 1994, ch. 340, § 2, p. 1075.

Compiler’s Notes.

Section 1 of S.L. 1982, ch. 311 read: “Policy statement. It is the policy of this state that joint custody is a mechanism to assure children of continuing and frequent care and contact with both parents provided joint custody is in the best interest of said children.”

Greater Relationship.

Trial court erred in disregarding the presumption for joint custody and determining that mother’s greater relationship with child indicated that giving her sole legal and physical custody would be in the child’s best interests, where her greater relationship was primarily due to her illegal actions of absconding with the child to another state and obtaining a false domestic violence protection order there. Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007).

Limitation on Court.

Idaho favors the active participation of both parents in raising children after divorce, which policy is reflected in this section, supporting joint custody. However, the magistrate court has no authority to order a parent to reside in any particular geographical location. Allbright v. Allbright, 147 Idaho 752, 215 P.3d 472 (2009).

While Idaho favors the active participation of both parents in raising children after divorce, which policy is reflected in this section, the court has no authority to order either parent to reside in any particular geographical location. Markwood v. Markwood, 152 Idaho 756, 274 P.3d 1271 (Ct. App. 2012).

Modification of Custody.

The magistrate took into account the conditions that existed in 1984, which led to the “temporary” ex parte order granting physical custody of the children to father, and the conditions subsequent to that time and up to the 1987 hearing date, and properly placed the burden of proving changed circumstances on father who did not produce sufficient evidence of a change of circumstances warranting a modification of custody. Mills v. Mills, 120 Idaho 635, 818 P.2d 339 (Ct. App. 1991).

There was no abuse of discretion in determining that the child would live primarily with her father during the school year after determining that he would do better in fostering a strong parental bond with both parents. State v. Hart, 142 Idaho 721, 132 P.3d 1249 (2006).

Evidence showed that the parents had proven incapable of making joint decisions about school enrollment, and each had changed the children’s school enrollment without consulting the other. Magistrate’s decision, which limited the mother’s unilateral authority solely to choosing the children’s schools and continued joint legal custody with respect to all other questions concerning the children’s education, health and general welfare, was not an abuse of discretion. Silva v. Silva, 142 Idaho 900, 136 P.3d 371 (Ct. App. 2006).

After the husband pleaded guilty to domestic battery, his wife left Idaho and fled to Oregon with their minor child. Magistrate court abused its discretion by ordering the wife to return with their child to Boise or surrender child custody. It was error for the magistrate court to fail to make findings on the wife’s argument that the husband’s habitual domestic violence overcame the presumption that joint custody was in the child’s best interest. Schultz v. Schultz, 145 Idaho 859, 187 P.3d 1234 (2008). In ruling on a mother’s request to move with her child to Hawaii, a magistrate needs to consider this section’s presumption in favor of joint custody and frequent and continuing contact between both parents and the child, as well as all of the factors listed in§ 32-717. However, the presumption is not irrebutable. Bartosz v. Jones, 146 Idaho 449, 197 P.3d 310 (2008).

Magistrate and the district court erred by “redefining” joint custody and awarding sole legal custody to a mother, where neither party filed a petition for modification, was on notice that custody, as a general matter, was being disputed, or had an opportunity to present evidence and arguments appropriate to a custody modification dispute. Mahnami v. Mahnami, 156 Idaho 338, 325 P.3d 679 (Ct. App. 2014).

In a case where the mother granted her consent to her 17-year-old child’s marriage, but the father did not, the district court erred in affirming the magistrate’s judgment holding the mother in contempt for violating the order modifying custody, because the order did not clearly and unequivocally prohibit the mother from consenting to the child’s marriage. Thompson v. Bybee, 161 Idaho 158, 384 P.3d 405 (Ct. App. 2016).

— Child Custody Evaluator.

Custody modification conforming to a child custody evaluator’s recommendations was proper where it weighed the evidence in the evaluation as it applied to the pertinent statutory factors; when the mother and father agreed to resolve custody in accordance with the evaluator’s recommendations, they agreed to allow his evaluation to be the only evidence the trial court considered in making its decision as to the children’s best interests. Firmage v. Snow, 158 Idaho 343, 347 P.3d 191 (2015).

Presumption Overcome.

Award of sole physical custody of two children to the mother was proper where she had served as the children’s primary caregiver their entire lives, she was best able to meet their physical and psychological needs consistently, and the father inappropriately involved the children in his conflict with the mother. Because an award of sole physical custody to the mother was in the children’s best interests, the joint custody presumption was overcome and the custody award was not an abuse of discretion. Danti v. Danti, 146 Idaho 929, 204 P.3d 1140 (2009).

In a custody modification proceeding, the trial court did not err in concluding that granting the father sole legal and primary physical custody of the parties’ son was in the son’s best interest because the mother’s conduct was directly affecting the son’s relationship with the father; the trial court had evidence of the mother’s three and one-half years of intransigence. Doe v. Doe (In re Doe), 149 Idaho 669, 239 P.3d 774 (2010).

Primary Physical Custody.

While “joint legal custody” and “primary physical custody” are not inconsistent, the determination to award primary physical custody to one parent instead of joint physical custody to both parents requires a statement of reasons therefor under subsection (1) of this section. Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987).

Magistrate’s finding that the father was not a habitual perpetrator of domestic violence was supported by substantial and competent evidence as the incidents of violence initiated by the father resulted from his mental illness, which was later controlled by medication and counseling. King v. King, 137 Idaho 438, 50 P.3d 453 (2002).

Relocation.

The relocating parent has the burden of proving that it would be in the child’s best interests to allow relocation of the child rather than to award primary physical custody to the other parent. Markwood v. Markwood, 152 Idaho 756, 274 P.3d 1271 (Ct. App. 2012).

District court’s determination that it was in the best interest of a child to reside primarily in Idaho was not an abuse of discretion; the child’s adjustment to home, school, and community favored shared custody in Idaho, a move to Nevada with the child’s mother would not have had a positive effect on the child’s relationship with the child’s father, and custody in Idaho promoted more continuity and stability in the child’s life. Clair v. Clair, 153 Idaho 278, 281 P.3d 115 (2012).

Violation.

Where father had joint physical custody of a child under a parenting plan, defendant/mother, who did not deliver the child to the father per the parenting plan and who concealed the child from the father for eight months, could be charged and convicted of kidnapping under§ 18-4501(2). State v. Anderson, 154 Idaho 54, 294 P.3d 180 (2013).

Idaho Law Review.

Idaho Law Review. — Idaho Custody Determinations: Limits on Standing, Comment. 50 Idaho L. Rev. 141 (2013).

ALR.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — Conduct or Condition of Parents; Evidentiary Issues. 100 A.L.R.6th 1.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order and/or divorce judgment — Primary custody, visitation, residence, and relocation. 102 A.L.R.6th 153.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Cross References.

Central registry for sex offenders,§ 18-8305.

Idaho bureau of criminal identification,§ 67-3003.

Amendments.

The 2012 amendment, by ch. 45, deleted the first sentence of former paragraph (2)(d), which read: “Agree to appointment without requiring the parties to pay a retainer for services”; and transferred the second sentence of former paragraph (2)(d) to be the second sentence in subsection (4).

The 2014 amendment, by ch. 163, added subsection (5).

Compiler’s Notes.

For further information on federal bureau of investigation identity history summary checks, referred to in paragraph (2)(c), see https://www.fbi.gov/services/cjis/identity-history-summary -checks .

For further information on the national crime information center, referred to in paragraph (2)(c), see https://fas.org/irp/agency/doj/fbi/is/ncic.htm .

Authority.

Although the parenting coordinator acted without any specific authority in making recommendations and decisions regarding the parties’ custody issues, the coordinator has the general authority to take actions that empower the parties to engage in effective parenting; on remand, the district court had to determine the coordinator’s reimbursement rate, based on which of his actions fell within that general grant of authority. Hausladen v. Knoche, 149 Idaho 449, 235 P.3d 399 (2010).

Even though a 2008 opinion from the Idaho court of appeals stated that the plain language of this statute limited a parenting coordinator’s powers to those granted in a magistrate’s appointment order, this conflicted with a decision from the Idaho supreme court, which had to be followed. A coordinator’s actions fall within the general powers granted by this section and former Idaho R. Civ. P. 16(l)(1) (now Idaho R. Fam. L. P. 716) since there was no modification of a judgment, and the use of the word “order” was tempered by the use of the word “recommendation.” Hausladen v. Knoche, 159 Idaho 359, 360 P.3d 367 (Ct. App. 2015).

Constitutionality.

Idaho supreme court did not violate the separation of powers clause of the Idaho constitution through its opinion in Hausladen v. Knoche , 149 Idaho 449, 235 P.3d 399 (2010), and promulgation of one of the Idaho Rules of Family Law Procedure. They merely construed the applicability of a parenting coordinator statute in the absence of an appointment order granting specific powers. Hausladen v. Knoche, 159 Idaho 359, 360 P.3d 367 (Ct. App. 2015).

ALR.

§ 32-717E. Supervised access providers — Record checks.

In cases in which a court has ordered that contact between a person and one (1) or more children shall take place only in the presence of an approved provider, or where the court has ordered supervised exchanges or transfers of one (1) or more children, the court may appoint an individual or entity as a supervised access provider to provide such supervised access or to facilitate such exchanges or transfers. The qualifications and duties of supervised access providers shall be as specified in rules adopted by the supreme court. A supervised access provider who is paid for providing supervised access services shall, prior to acting in such capacity and at his or her own cost, submit to a fingerprint-based criminal history check through any law enforcement office in the state providing such service. The criminal history check shall include a statewide criminal identification bureau check, federal bureau of investigation criminal history check, child abuse registry check, adult protection registry check and statewide sex offender registry check. A record of all background checks shall be maintained in the office of the supreme court of the state of Idaho.

History.

I.C.,§ 32-717E, as added by 2007, ch. 106, § 1, p. 310.

Cross References.

Central registry for sex offensers,§ 18-8305.

Idaho bureau of criminal identification,§ 67-3003.

Compiler’s Notes.

For further information on federal bureau of investigation identity history summary checks, referred to in the next-to-last sentence, see https://www.fbi.gov/services/cjis/identity-history-summary -checks .

Attorney’s Fees.

Trial court did not abuse its discretion by awarding attorney fees pursuant to this section to husband, where wife brought action to modify child support and custody, where no changes in circumstances had taken place and the real reason that wife sought to alter the custody arrangement was that she thought it was her turn to be primary custodial parent and was tired of being inconvenienced in travel between her home and husband’s home. Levin v. Levin, 122 Idaho 583, 836 P.2d 529 (1992).

Non-parent Custody.

The Idaho supreme court’s decision in Stockwell v. Stockwell , 116 Idaho 297, 775 P.2d 611 (1989) is not a key to the courthouse for non-parents seeking custody of minor children. Nor has the Idaho legislature, as of June 2017, adopted a statutory framework that would enable the unmarried partner of a biological mother to seek custody or visitation of an artificially conceived child. Doe v. Doe, 162 Idaho 254, 395 P.3d 1287 (2017).

Standard of Proof.

Liberty interest, encompassing a parent’s right to determine with whom his or her child could associate, was entitled to equally heightened protection in the visitation rights context. Given such a fundamental right, the clear and convincing standard of proof applied to actions brought under this section. Leavitt v. Leavitt, 142 Idaho 664, 132 P.3d 421 (2006).

Standard of Review.

Idaho supreme court holds that visitation decisions made pursuant to this section are subject to the abuse of discretion standard of review. In reviewing an exercise of discretion, an appellate court must consider (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. Leavitt v. Leavitt, 142 Idaho 664, 132 P.3d 421 (2006).

Idaho Law Review.

Idaho Law Review. — Idaho Custody Determinations: Limits on Standing, Comment. 50 Idaho L. Rev. 141 (2013).

Federal References.

The service members civil relief act, referred to in the first sentence in subsection (1), was amended in 2003 by P.L. 108-189 and redesignated as 50 U.S.C.S. § 3901 et seq.

ALR.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — Conduct or Condition of Parents; Evidentiary Issues. 100 A.L.R.6th 1.

Construction.

Proceeding under which insane person is incarcerated, having been given due process of law in foreign state, renders one “duly and regularly confined” within meaning of this section. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Effect of Statute.

Provisions of this section and§ 32-803 were not intended to provide different method of obtaining service of process on nonresident insane person in divorce actions or to supersede general statutes relating to service of process on nonresidents, but should be construed to be additions to procedure in this class of cases. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Purpose of Appointment.

Guardian ad litem represents person of nonresident insane defendant, not for purpose of giving court jurisdiction of subject-matter or person of defendant, on theory of constructive service, but to aid and assist in properly safeguarding interest of incompetent defendant. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Purpose of Statute.

Prosecuting or “county” attorney represents state primarily to the end that insane defendant may have any known defense to action, properly interposed, and his rights jealously guarded and protected at each stage of proceeding. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Cross References.

Alimony and distribution of property generally,§§ 32-704 to 32-714.

Custody of children in divorce actions generally,§ 32-717.

Modification of Decree.

Where the decree contains no provision for an award of alimony, no modification of decree can be made once the time for appeal has elapsed. Perovitz v. Perovitz, 94 Idaho 453, 490 P.2d 320 (1971).

Cross References.

Competency of husband and wife as witnesses,§ 19-3002.

Desertion and nonsupport of wife and children,§ 18-401 et seq.

Nature of marriage contract,§ 32-201.

Parents’ rights over children,§ 32-1007.

Constitutionality.

This section and§§ 32-903 and 32-904 are not unconstitutional as denying the wife freedom of contract or equal protection of law. Craig v. Lane, 60 Idaho 178, 89 P.2d 1008 (1939), overruled on other grounds, Coffin v. Cox, 78 Idaho 111, 298 P.2d 742 (1956).

Court enjoined enforcement of any laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit same-sex couples from marrying in Idaho; that relief is broad enough to cover provisions referencing “husband and wife” or the traditional, opposite-sex definition of marriage. Latta v. Otter, 19 F. Supp. 3d 1054 (D. Idaho), aff’d, 771 F.3d 496 (9th Cir. 2014), cert. denied, — U.S, — 135 S. Ct. 2931, 192 L. Ed. 2d 975 (2015).

Construction.

Statutes of this state with reference to contracts, powers and liabilities of married women must be construed as grants instead of restrictions of power and authority to contract. Bank of Commerce, Ltd. v. Baldwin, 12 Idaho 202, 85 P. 497 (1906), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Criminal Conversation.

Provisions of this chapter, concerning rights of married women, are in the nature of a grant, or an enlargement of the powers of wife to make contracts, as such rights existed at common law. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976). Criminal Conversation.

This section and§ 18-6601 were not grounds for wife’s cause of action against husband for criminal conversation based on husband’s adultery; the ill effects of a suit for criminal conversation outweigh any benefit it may have. Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994).

Divorce.

Divorce is the exclusive remedy for a breach of any duty imposed by this section; therefore, wife’s argument that her civil tort claims were not available to recompense her for her husband’s adultery was rejected. Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994).

Duties and Obligations.

— Husband.

Fact that debt was contracted by wife and credit was extended on faith of her promise to pay does not relieve husband of the liability imposed on by him by operation of law, independent of wife’s contractual liability to pay. Edminston v. Smith, 13 Idaho 645, 92 P. 842 (1907).

Primary duty rests on husband by reason of his marital contract and operation of law to furnish wife with the necessaries of life, which includes board and lodging, and creditor who furnished wife with such necessaries may maintain his action against husband, although latter never contracted debt, nor promised to pay bill. Edminston v. Smith, 13 Idaho 645, 92 P. 842 (1907).

Duty of husband to support wife is an obligation imposed upon him by the common law as well as by this section, but wife may, by contract, waive her right to support, and a separation agreement so providing is valid. Beard v. Beard, 53 Idaho 440, 24 P.2d 47 (1933).

The duty of a husband to support the wife and the minor children, the issue of the marriage, is a continuing one and has been accorded the dignity of a statutory obligation. Linton v. Linton, 78 Idaho 355, 303 P.2d 905 (1956).

It is the duty of husband to maintain and support his wife and family. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

— Wife.

Where necessaries are furnished to married woman on strength of her personal promise to pay therefor, debt is incurred for her use and benefit and she is liable therefor as a feme sole. Edminston v. Smith, 13 Idaho 645, 92 P. 842 (1907).

Conveyance of county property to county commissioner’s wife is absolutely void even though she purchases with her separate funds or with community funds. Clark v. Utah Constr. Co., 51 Idaho 587, 8 P.2d 454 (1932).

Separate Maintenance.

With defendant unable to pay for an attorney from his separate or community assets, his wife’s duty of support under this section, required that she pay, to the extent that she was financially able, for defendant’s legal defense. State v. Suiter, 138 Idaho 662, 67 P.3d 1274 (Ct. App. 2003). Separate Maintenance.

Suit for separate maintenance may be maintained by wife under this section. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920); Walker v. Manson, 49 Idaho 468, 289 P. 86 (1930).

Courts of equity have inherent jurisdiction to award separate maintenance for the support of the wife and minor children independent of any action for divorce and independent of any statutory provision. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920); Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731 (1938); Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940).

Compiler’s Notes.

This section, which comprised R.S., § 2494; reen. R.C. & C.L., § 2675; C.S., § 4655; I.C.A.,§ 31-902, was repealed by S.L. 1974, ch. 194, § 1.

Cross References.

Separate property exempt from execution on spouse’s separate debt,§ 11-204.

Certificate of Title for Automobile.

It was not the intent of the motor vehicle act that the issuance of certificate of title for an automobile to the wife would conclusively establish the title in her as separate property. As the automobile had been purchased with community funds, it became community property. Farmers Ins. Exch. v. Wendler, 84 Idaho 114, 368 P.2d 933 (1962).

Characterization of Property.

Whether a specific piece of property is characterized as community or separate property depends on when it was acquired and the source of the funds used to purchase it. The character of property vests at the time the property is acquired. Kraly v. Kraly, 147 Idaho 299, 208 P.3d 281 (2009).

Commingled Property.

When separate and community property are commingled so that tracing is impossible, it is presumed to be community property, and the burden is on the person asserting the separate character of the property; when direct tracing is impossible, the party may employ indirect evidence in the form of an accounting. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Where the trial court traced the assets in each of the husband’s bank accounts to the separate property of the husband acquired before marriage, and there was no community income from the separate property, there was no commingling of the funds and the property remained husband’s separate property; the assets purchased with these funds were also his separate property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Where, although the record indicated that husband’s deposit to money market account came from his savings account, he failed to present particular and certain evidence which traced his deposit to his separate funds contained in the account, and husband’s separate property in the money market account was mingled with wife’s separate funds, the district court correctly classified the money market account as community property. Lang v. Lang, 109 Idaho 802, 711 P.2d 1322 (Ct. App. 1985).

Community Enhancement of Separate Property.

The natural increase in value of a spouse’s separate property during the marriage generally is not community property; however, when 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. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

The measure of the reimbursement for community expenditures on separate property is the increase in value of the property attributable thereto, not the amount or value of the community contribution; the party seeking such reimbursement to the community carries the burden of demonstrating that the community expenditures have enhanced the value of the separate property, and the amount of the enhancement. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976). Where enhancement of the value of a separate property asset is not attributable to community effort or to rents and profits of the asset, it is separate property. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

When separate property is enhanced by community efforts, labor, industry, or funds, the community is entitled to reimbursement for such enhancement. Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

When community labor or funds enhance the value of separate property, the amount of the enhancement is community property for which the community is entitled to reimbursement; the measure of reimbursement is the increase in value of the property attributable to the community contribution, not the amount or value of the community contribution. The party seeking reimbursement to the community carries the burden of proving that the community expenditures have enhanced the value of the separate property, and the amount of the enhancement. Sherry v. Sherry, 108 Idaho 645, 701 P.2d 265 (Ct. App. 1985).

When a husband uses community property to improve his wife’s separate estate, a gift of his community share is no longer presumed; therefore, the community should have been compensated for its payment of income taxes on the wife’s share of reported partnership earnings which were her separate property, if the payments of income taxes were intended as a gift of husband’s community share to the wife’s separate estate. Brazier v. Brazier, 111 Idaho 692, 726 P.2d 1143 (Ct. App. 1986), overruled on other grounds, Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

In a divorce action, the magistrate’s decision to deny reimbursement to the community for alleged enhancements to the husband’s separate property due to expenditures of community funds and labor was supported by substantial competent evidence, because some of the alleged improvements were made before the marriage, and the wife failed to demonstrate that the community expenditures enhanced the value of the husband’s separate property and the amount of the enhancement. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

Community Property.

Property purchased after marriage with money borrowed by wife is community property. Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468 (1915).

Where the original contract purchaser of a ranch, who defaulted on contract subsequent to divorce which was later set aside for fraud, married the new purchaser of the ranch and cohabited with her with knowledge of the illicit status of his purported marriage and without furnishing any funds for payments on her contract of purchase, said husband acquired no interest in second ranch for which second wife had traded her interest in first ranch by such purported marriage and cohabitation and the ranch was not community property. Cargill v. Hancock, 92 Idaho 460, 444 P.2d 421 (1968).

Where parents transferred to their son the deed to a farm in return for an annuity contract which was of less value than the property, and where the differential was declared by the parents to be a gift to the son, the son had a separate property interest in the farm equivalent to the excess of the fair market value of the farm over that of the contract and the remainder of the farm was the community property of the son and his wife. Stanger v. Stanger, 98 Idaho 725, 571 P.2d 1126 (1977).

Where the evidence indicated no increase in the size of cattle herd during marriage, but rather indicated that the cattle herd had diminished to practically nothing at the death of the decedent husband, the trial court properly determined that there was no community income from the herd, with the possible exception of interest accrued on moneys received from the sale, which moneys were more than exhausted by community expenses. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983). Where down payment on house was made by husband from his separate funds, but house was deeded to both husband and wife, and they each signed on the promissory note and deed of trust and, in case of default, the lender’s first option would be to foreclose the mortgage on the house, the facts generated a strong inference that the character of the property was community and, in the absence of any relevant evidence to the contrary, the district court correctly found the house to be community property. The payments made on the community obligation from husband’s separate funds were subject to reimbursement to him in the absence of a finding that such contributions were intended as a gift to the community. Winn v. Winn, 105 Idaho 811, 673 P.2d 411 (1983).

The mere signing by wife of the mortgage and leases on property conveyed to husband as a gift from his parents did not create a community interest in the property. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

A deed granting property to only one spouse shows the acquisition of property during marriage, and, without more, the presumption that the property is community applies; the separate character of the property can be established by tracing the source of the funds used to acquire the property to the separate property of the spouse named in the deed, or by showing that the property was acquired by gift, bequest, devise or descent. Hall v. Hall, 116 Idaho 483, 777 P.2d 255 (1989).

Trial court’s finding that two parcels of land were community property and not husband’s separate property was proper where witnesses presented contradictory testimony and husband failed to produce quitclaim deed he contended had been executed by his father to him before the marriage stating that deed was lost. Krebs v. Krebs, 114 Idaho 571, 759 P.2d 77 (Ct. App. 1988).

Constitutionality.

This section is not unconstitutional as denying the wife freedom of contract or equal protection of law. Craig v. Lane, 60 Idaho 178, 89 P.2d 1008 (1939), overruled on other grounds, Coffin v. Cox, 78 Idaho 111, 298 P.2d 742 (1956).

Conveyance Between Spouses.

Husband, when free from debts and liabilities, may make a gift to his wife from their community property and same will then become her separate property and will not be liable for debts subsequently contracted by him. Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169 (1914).

As against preexisting creditor, wife who takes a conveyance from her husband must show adequate consideration by clearer proof than is required in transactions between strangers. Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468 (1915).

Gift of real property from husband to wife is not prima facie fraudulent. McMillan v. McMillan, 42 Idaho 270, 245 P. 98 (1926).

Transfer of property from husband to wife is not fraudulent if he has sufficient remaining property to pay his debts. McMillan v. McMillan, 42 Idaho 270, 245 P. 98 (1926).

Wife, having offered a document in an attempt to prove that its contents transmitted certain property from separate status to community property status, failed to sustain her burden of proving a transmutation, and also failed to demonstrate that the formalities required in§§ 32-917 through 32-919 had been followed. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990). Property acquired by husband subsequent to the first divorce from, and prior to second marriage to, the same woman, was his sole and separate property; a gift to the woman of an undivided one-half interest in the same property, which was also made between the divorce and remarriage, became the wife’s sole and separate property, which interest she later conveyed to a corporation. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

In a divorce action, the magistrate’s finding that a 1998 quitclaim deed from the husband to himself and the wife did not transmute the husband’s home from separate to community property was supported by substantial competent evidence, because the husband signed the quitclaim deed simply because a lender presented it to him during a loan closing, he signed it along with many other papers the lender presented to him, he had no intent to transmute his property into community property, and he alone signed the promissory note for the new loan. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

Where a debtor and his wife purchased a motorcycle prior to their marriage, it was not community property under§ 32-906; so when the debtor transferred his interest in the motorcycle to his wife after their marriage, it was her separate property from that time forward under this section. Because the motorcycle became her separate property at that time, the debtor did not transfer an interest in the motorcycle to his wife within the applicable reach back period in 11 U.S.C.S. § 548(a) or in the four-year period provided in§ 55-918, as applicable to the fraudulent transfer provisions in§§ 55-913(1)(a), (1)(b) and 55-914(a). Rainsdon v. Kirtland (In re Kirtland), 2011 Bankr. LEXIS 3828 (Bankr. D. Idaho Sept. 30, 2011).

Equitable Right in Property.

Property to which one spouse has acquired an equitable right before marriage is separate property, though such right is not perfected until after marriage. Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

Estoppel.

Wife who permits her separate property to remain in her husband’s name is estopped to assert her title against his creditors. Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468 (1915).

The rule of estoppel does not apply where wife did not know the title to the property was in husband’s name. McKeehan v. Vollmer-Clearwater Co., 30 Idaho 505, 166 P. 256 (1917).

Estoppel applies to married woman dealing in matters concerning which her common-law disabilities have been removed, same as to any other person. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972).

Where husband abandoned family except for sending small remittances at irregular intervals, and wife carried on business and treated property acquired therein as her separate property, neither husband nor wife could say, as against her creditors, that such property was not her separate property. Sassaman v. Root, 37 Idaho 588, 218 P. 374 (1923).

Evidence.

Oral testimony of wife ought not to be received on question of separate property if written evidence is available (Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468 (1915)); otherwise when written evidence is lost. McKeehan v. Vollmer-Clearwater Co., 30 Idaho 505, 166 P. 256 (1917). While wife’s separate property may undergo mutations and yet retain its separate character, still the proof to trace and identify it in its changed condition must be clear and satisfactory. Ahlstrom v. Tage, 31 Idaho 459, 174 P. 605 (1918); Clifford v. Lake, 33 Idaho 77, 190 P. 714 (1920); McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929).

Husband’s Separate Property.

Farm, machinery, and other assets owned by husband before marriage held to be separate property. Riggers v. Riggers, 81 Idaho 570, 347 P.2d 762 (1959).

The trial court properly held that the Fisher Farm was the separate property of the husband, it having been purchased on contract with a down payment of $1500 more than one year before their marriage took place, subject however to the right of the wife to reimbursement for one half of the community funds applied toward payment thereof. Fisher v. Fisher, 86 Idaho 131, 383 P.2d 840 (1963).

Deposit of the proceeds of the sale of a business which was the separate property of the husband in a joint bank account of the husband and wife did not convert such funds into community property. Stahl v. Stahl, 91 Idaho 794, 430 P.2d 685 (1967).

Where the down payment on the purchase of a ranch was made by the husband from the proceeds of the sale of a ranch he had owned prior to marriage and all payments of principal and interest were made from the sale of cattle that were on the ranch at the time it was purchased, the fact that the wife signed the purchase contract with her husband was insufficient to constitute the ranch community property. Cargill v. Hancock, 92 Idaho 460, 444 P.2d 421 (1968).

Cattle held in business of selling and reinvesting in cattle, where original herd was husband’s separate property, were “proceeds” from the sale thereof and likewise husband’s separate property. Evans v. Evans, 92 Idaho 911, 453 P.2d 560 (1969).

Where the husband’s father made gifts before and after marriage to son, the fact that he never could get along with son’s wife would indicate that gifts were to son rather than to community and became separate property of husband. Lepel v. Lepel, 93 Idaho 82, 456 P.2d 249 (1969).

A wife, in a divorce suit, could not obtain an interest in her husband’s property in Idaho, acquired during the marriage as separate property by exchange for Wyoming property, where such marriage was entered into in a common law state, the state of Wyoming, which did not recognize concept of community property, notwithstanding the fact that subsequently the couple moved to a community property jurisdiction, the state of Idaho. Peterson v. Peterson, 94 Idaho 187, 484 P.2d 736 (1971).

Where husband’s parents conveyed title to a tract of land to the husband through an oral gift at a time when he was unmarried, a subsequent quitclaim deed executed to both husband and wife conveyed no title and the land was husband’s separate property. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

A fifth wheel trailer acquired by husband prior to marriage was his sole and separate property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Farming equipment owned by the decedent husband prior to marriage, to the extent it still existed as a part of his estate, was readily identifiable as pre-nuptial assets and was his separate property. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983). Where community labor, industry, or effort was not shown to have produced any community interest in the bank accounts of the decedent husband and community expenses had more than consumed any community assets, the remainder of the property in the decedent’s estate was separate property. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Where there was substantial evidence that each of the parties entered the marriage relationship with separate property, that they intended to retain the separate nature of that property, that they kept separate bank accounts into which each deposited moneys, and that during the course of the marriage neither claimed any interest in the other’s bank account or attempted to or did withdraw any moneys from the other’s bank account and where all of the property in question, in action by widow to recover from estate, was purchased with moneys from the decedent husband’s separate bank accounts, such property of the decedent’s estate was his separate property by the nature of its source which was a ranch contract which was vested, obligatory, and intact before the existence of any marriage relationship. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Where husband produced evidence that the one-half interest in the farm property was obtained from his parents and that it was intended to be a gift to him only, the magistrate’s finding that the one-half interest in the farm land was husband’s separate property was supported by substantial and competent evidence. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984).

Where, according to the evidence, the contract for certain real estate was received by the husband from his father during the marriage by gift, the contract on the property was the husband’s separate property at the time it was acquired. Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

Where husband traced funds used to purchase household items to his checking account, and wife failed to show that the status of such property was community property, the magistrate’s finding that the household items were community property was clearly erroneous and would be set aside, despite the fact that wife’s name also appeared on the checking account. Lang v. Lang, 109 Idaho 802, 711 P.2d 1322 (Ct. App. 1985).

Income Following Separation.

The earnings of the husband following separation and up to the date of divorce must be included as community property. Desfosses v. Desfosses, 120 Idaho 354, 815 P.2d 1094 (Ct. App. 1991).

Income from Separate Property.

Even though there was no dispute that the sole proprietorships owned by the husband at the time of marriage were his sole and separate property, after marriage, the net income of the proprietorships became community property. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Liability for Debts.

Where a married man (or woman) has entered into a contract for a community obligation, he has personally obligated himself under the contract, and his judgment creditor under the contract may execute upon his separate property for the satisfaction of a judgment against him. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Where husband and wife each owned one-half interest in property as his or her sole and separate property, each was liable for one-half of the debts incurred by those properties; those debts are not community debts, but obligations on each person’s separate property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982). The principal payments on husband’s farm loan were necessarily paid from the farm’s net rental income, and the magistrate erred in determining that the community was not entitled to reimbursement. Vanwassenhove v. Vanwassenhove, 134 Idaho 198, 998 P.2d 505 (Ct. App. 2000).

In a joint Chapter 7 bankruptcy petition where the husband and wife debtors divorced prior to the closing of administration, under 11 U.S.C.S. § 726(c), the wife’s separate property was liable for payment of allowed administrative claims, any allowed community claims, and for payment of any allowed claims flowing from her separate debts; however, 11 U.S.C.S. § 726(c) did not allow a distribution of the wife’s separate property to holders of claims that were enforceable against only the husband’s separate property. In re Hicks, 300 B.R. 372 (Bankr. D. Idaho 2003).

Military Disability Benefits.

While all property acquired during the marriage is presumed to be community property, military disability benefits received beyond an amount attributable to lost earning power during the marriage are the separate property of the injured spouse; therefore, the military disability benefits received by the husband subsequent to the divorce should be awarded as husband’s separate property. Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984).

Money Borrowed on Separate Property.

Money borrowed on the faith and credit of separate property is separate property, where the separate estate is the primary source of future repayment. Lepel v. Lepel, 93 Idaho 82, 456 P.2d 249 (1969).

Piercing the Corporate Veil.

Idaho supreme court declined to adopt the remedy of piercing the corporate veil in context of a divorce division of community property. Neibaur v. Neibaur, 142 Idaho 196, 125 P.3d 1072 (2005).

Personal, Physical and Intellectual Attributes.

A spouse’s knowledge, background and talents, being personal, physical or intellectual attributes, cannot be categorized as property, either separate or community. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Personal attributes can enhance income which, in the absence of an ante-nuptial agreement to the contrary, is community property, however, personal attributes are not property; thus, they cannot be classified as community property, nor can they be apportioned between spouses upon divorce. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Presumption.

A presumption exists that property acquired during marriage is community property and the party asserting the separate nature of such property has the burden of so proving. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

The fundamental concept of community property law is that all property acquired by either spouse during the marriage is rebuttably presumed to be community property; however, the presumption of community property may be rebutted by showing that the property was received as a gift by one of the spouses, because property acquired by gift is separate property. Shumway v. Shumway, 106 Idaho 415, 679 P.2d 1133 (1984). All property acquired by either spouse during the marriage is rebuttably presumed to be community property. Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

Property purchased during marriage is subject to the presumption that all assets acquired during marriage are community property; the party asserting that such property is separate has a burden of overcoming this presumption by proving the separate character of the property through tracing the source of the funds used to make the acquisition. Cummings v. Cummings, 115 Idaho 186, 765 P.2d 697 (Ct. App. 1988).

Any assets acquired during marriage are presumed to be community property, with the burden of proof resting upon the party asserting that such assets constitute separate property. Bowlden v. Bowlden, 118 Idaho 84, 794 P.2d 1140 (1990).

Although there is a rebuttable presumption that property acquired during marriage is presumed community property, the husband successfully proved that the business was his separate property by tracing the funds used to acquire the business. Worzala v. Worzala, 134 Idaho 615, 7 P.3d 1092 (2000).

Chapter 7 debtor who claimed a homestead exemption in real property she owned in Idaho was entitled to avoid a judgment lien a creditor placed on the property six months before the debtor and her husband were divorced and her husband transferred his interest to the debtor. The creditor obtained a judgment against the debtor’s former husband after he failed to repay a debt, this section created a presumption that the property was community property at the time the creditor filed its lien, the lien attached to the debtor’s community property interest, and the lien impaired the debtor’s homestead exemption. In re Ashcraft, 415 B.R. 428 (Bankr. D. Idaho 2008).

Property acquired during a marriage is presumed to be community property. The presumption can be overcome if the party asserting the separate character of the property carries his burden of proving, with reasonable certainty and particularity, that the property acquired during marriage is separate property. Kraly v. Kraly, 147 Idaho 299, 208 P.3d 281 (2009).

Proceeds From Community Property.

The community was not entitled to reimbursement of the proceeds from the farm equipment where a portion of the proceeds was used to purchase a pickup as a graduation gift for the younger son of the parties and the remainder was used to pay community obligations. Vanwassenhove v. Vanwassenhove, 134 Idaho 198, 998 P.2d 505 (Ct. App. 2000).

Property Acquired From Proceeds of Separate Property.

If proceeds from sale of separate property are used to acquire other property, the acquired property also is separate in character. Pringle v. Pringle, 109 Idaho 1026, 712 P.2d 727 (Ct. App. 1985).

Property Acquired Outside State.

Where evidence supported husband’s contention that the entire purchase price of an acquired property was paid with his separate funds from the sale of his pre-marital separate home in Florida and the trial court did not find that husband gifted any part of the property to wife, the court properly held that the property was husband’s separate property. Kraly v. Kraly, 147 Idaho 299, 208 P.3d 281 (2009). Property Acquired Outside State.

Where the law of the state of marital domicile at the time the parties acquired securities and bank accounts characterized such property as “separate” but recognized the right of a spouse at the time of divorce to share in the distribution of such property, the trial court in a divorce action was in error in applying this section to the securities and bank accounts which, if acquired jointly by the parties while domiciled in this state, would have been deemed community property and subject to division upon a divorce. Berle v. Berle, 97 Idaho 452, 546 P.2d 407 (1976).

Purpose of Statute.

Constitution gave married woman no rights in addition to those she had at the time of its adoption. The purpose of the statute is for the protection of her separate property, leaving her free to deal with it as she sees fit. Craig v. Lane, 60 Idaho 178, 89 P.2d 1008 (1939).

Retirement Benefits.

Military retirement benefits are classified as community or separate property according to whether the active service upon which the benefits are based took place prior to marriage or after marriage. Thus, in keeping with general community property principles, military retirement benefits are community property to the extent that they were earned during the marriage; conversely, military retirement benefits are separate property to the extent they were earned prior to the marriage. Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984).

Where husband’s military service took place entirely before the marriage, his entire retirement pay would be classified as separate property. Lang v. Lang, 109 Idaho 802, 711 P.2d 1322 (Ct. App. 1985).

In an action by a wife, six years after her divorce, for a redetermination of community property interest in husband’s pension benefits, in which wife was awarded one-half of the pension benefits, valued at the time of actual retirement, that award included increases in pension benefits which accrued after the date of divorce, and hence not acquired during marriage, but during the time the husband was an unmarried person and, as such, those increases constituted the separate property of the husband, and to the extent that an interest in those post-divorce increases was awarded to the wife, it constituted an impermissible invasion of husband’s separate property. Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (1988).

Where husband’s first eligible retirement date was six months after his divorce and his actual retirement date was four years later, the determination of, and the valuation of, the pension benefits should have occurred at the date of the decree of divorce; however, where such valuation and an award of a lump sum to the wife was not made and appeared to be impossible six years later in an action for redetermination of community interests, the court ruled that an award was necessary based upon the monthly sum which would have been received if the husband had taken retirement at his first eligibility. Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (1988).

A qualified domestic relations order is a present separation of future retirement benefits and, under certain circumstances, may be preferable over a cash distribution because it does not place an undue financial strain on either party; but where husband was prepared to make a lump sum payment to wife the magistrate should have included a provision in the qualified domestic relations order that would have given him the option to make a lump sum payment to her within 60 days after judgment was entered representing the present value of her interest in the fixed benefit plan benefits. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991). Although the “time rule” method of valuation of the community interest in pension plans could be employed, by calculating community interest in a retirement fund using a ratio of the duration of the marriage with the years of service, it has never been adopted nor held that the “time rule” is the only acceptable method. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

The evidence presented to the magistrate, which related to the value of the pension benefits, was in the form of account statements showing the contributions made during the marriage and the account balance at the time of marriage and at the time of divorce; any contributions, increases or earnings in the account which occurred prior to the marriage are separate property under this section, and that portion of the account was reflected in the account balance at the time of marriage; therefore, by subtracting the account balance at the time of marriage from the account balance at the time of divorce, the portion of the contributions and the increases in the account which were acquired during the marriage are identified and there is a rebuttable presumption that all property acquired during marriage — in this case, contributions and increases in the account — is community property. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

Federal law which authorizes and regulates individual retirement accounts does not preempt Idaho community property law which would characterize individual retirement accounts which were purchased with community funds as community property. In re Estate of Mundell, 124 Idaho 152, 857 P.2d 631 (1993).

Retirement account and personal property were wife’s separate property, where husband and wife never withdrew any funds from the retirement account, husband never contributed to account, and wife purchased personal property with money she inherited. McCoy v. McCoy, 125 Idaho 199, 868 P.2d 527 (Ct. App. 1994).

Because wife in divorce action was awarded a sum equal to her interest in the military retirement benefits of her husband to be paid in installments, she was entitled to interest accrued at the rate used to discount the retirement benefits to their present value. Balderson v. Balderson, 127 Idaho 48, 896 P.2d 956 (1995), cert. denied, 516 U.S. 865, 116 S. Ct. 179, 133 L. Ed. 2d 118 (1995).

Amount in a wife’s retirement account at the time of marriage was her separate property; however, the husband’s retirement account, though valued less than it was at the time of the marriage, was properly characterized as community property, as he had commingled both separate and community funds in it and he had transferred money out of it to fund his business ventures. Baruch v. Clark, 154 Idaho 732, 302 P.3d 357 (2013).

Sale of Separate Property to Spouse.

A divorce decree may not compel one spouse to sell his or her separate property to the other spouse. Pringle v. Pringle, 109 Idaho 1026, 712 P.2d 727 (Ct. App. 1985).

Separate Property Business.

Vested Disability Benefits.

Whenever one party to a marriage claims that he or she is entitled to share in the increase in value of a separate property business in which one of the parties was an employee during the marriage, the proper inquiry upon dissolution of the marriage is whether the community has been adequately compensated for its labor, and in determining adequate compensation, a three-pronged analysis is called for; first, business factors such as, inter alia, type, size and growth pattern should be considered; second, once the business factors have been considered, the question is whether the overall compensation received by the community was equivalent to the compensation that would have been necessary to secure a non-owner employee to perform the same services the community rendered; and third, if it is found that the community has been under-compensated, the community is then entitled to a judgment against the owner-spouse equivalent to the deficiency found. If, however, no deficiency is found, the community has no claim. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990). Vested Disability Benefits.

Where a wife’s disability benefits vested long before marriage, her separate labor was the source of the benefits, therefore, her disability benefits received during the marriage remained her separate property. Cummings v. Cummings, 115 Idaho 186, 765 P.2d 697 (Ct. App. 1988).

Wife’s Separate Property.

Cases in which property was held to be the wife’s separate property are as follows:

Mining property by gift. Young v. First Nat’l Bank, 4 Idaho 323, 39 P. 557 (1895).

Property purchased in name of wife to the extent of payment with the fund of her separate estate. Northwestern & P. Hypotheek Bank v. Rauch, 7 Idaho 152, 61 P. 516 (1900).

Property purchased with separate funds, even though husband joined in signing mortgage notes for balance. Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775 (1912); Baldwin v. McFarland, 26 Idaho 85, 141 P. 76 (1914); Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169 (1914).

Interest in a contract which had been assigned by husband to wife. Salisbury v. Spofford, 22 Idaho 393, 126 P. 400 (1912).

Property acquired by a married woman as separate property in another state and brought into this state. Gooding Milling & Elevator Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772 (1912).

Property purchased with proceeds of separate homestead. Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66 (1913).

Question whether proceeds of timber cut from separate property are separate or community, undecided. Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66 (1913).

Gift from husband from community property. Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169 (1914).

Property purchased with wife’s money loaned to husband and repaid without fraud on creditors. Wilkerson v. Aven, 26 Idaho 559, 144 P. 1105 (1914).

Property purchased with wife’s money, title taken in husband’s name, without wife’s knowledge and contrary to her instruction, she being illiterate. McKeehan v. Vollmer-Clearwater Co., 30 Idaho 505, 166 P. 256 (1917).

Homestead entry by wife before marriage, even where proof is made subsequent to marriage. Boggs v. Seawell, 35 Idaho 132, 205 P. 262 (1922).

Property of wife owned by her before marriage and that acquired with proceeds of her separate property. Sassaman v. Root, 37 Idaho 588, 218 P. 374 (1923); Bannock Nat’l Bank v. Automobile Accessories Co., 37 Idaho 787, 219 P. 200 (1923).

If deed describes property as “sole and separate property and estate” of wife, presumption in favor of community property disappears. Bowman v. Bowman, 72 Idaho 266, 240 P.2d 487 (1952).

Where a wife brought an action against her husband seeking damages for personal injuries arising out of a one-car accident, the wife was entitled to recover special damages as actual out of pocket expenses which were a community liability, general damages for loss of future earnings recoverable only in the fraction of one-half as the separate property of the injured spouse, and general damages for pain and suffering fully recoverable as the injured spouse’s separate property. Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975). Where down payment for property bought by wife before marriage was borrowed and later was repaid with community funds, the property remained separate. Pringle v. Pringle, 109 Idaho 1026, 712 P.2d 727 (Ct. App. 1985).

House remained wife’s separate property, where home was bought with wife’s separate property, and the language used in the post-purchase warranty deed was ambiguous, allowing wife to offer extrinsic evidence of her intent. McCoy v. McCoy, 125 Idaho 199, 868 P.2d 527 (Ct. App. 1994).

Wife’s recovery from an employment discrimination lawsuit that was settled during her marriage was her separate property, where the alleged discrimination occurred prior to her marriage. In re Hicks, 300 B.R. 372 (Bankr. D. Idaho 2003).

Workers’ Compensation Benefits.

Where property, or the right to receive property, is acquired during marriage as compensation for some right personal to one spouse alone, that property takes its character from the right violated and is the separate property of the injured spouse; accordingly, the right to workers’ compensation payments received because of work-related injuries suffered by one spouse during the marriage is the separate property of that spouse and not the community property of the couple after a divorce. Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981).

The word “acquired” should not be read over broadly to require that every award of workers’ compensation be deemed community property in total simply because the injury upon which the benefits are premised occurred during marriage. Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981).

Although workers’ compensation benefits are presumed to be community property when acquired during marriage, once the marriage is terminated it becomes evident that the marital community’s interest in a workers’ compensation award is limited, and benefits beyond an amount attributable to lost earning power during the marriage constitute the separate property of the injured spouse. Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981).

OPINIONS OF ATTORNEY GENERAL

Community Property as Collateral.

This section and§§ 32-910, 32-911, and 32-912 suggest that one spouse can obligate the community property of the marital estate and make that property available to a creditor desiring to execute on that property in the event of loan default, in the case of an unsecured loan incurred without the signature of the other spouse to the promissory note or loan obligation. Cases construing these statutes, however, attach significant qualifications to this conclusion.OAG 05-1.

ALR.

Divorce and separation: Health insurance benefits as marital asset. 81 A.L.R.6th 655.

Cross References.

Capacity of married women to sue and be sued,§ 5-304.

Liability for personal debts,§ 32-911.

Married women’s separate property, instruments relating to, to be recorded by county recorder,§ 31-2402.

Compiler’s Notes.

Most of the cases annotated under this section were decided prior to the decision in Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976). The holdings in some of these cases, while not explicitly overruled in Williams v. Paxton, may be outdated or questionable in light of the court’s discussion in that case and in light of current equal protection requirements. See heading “Liability for Debts.”

Appeal Bond.

An appeal bond filed by a married woman living with her husband is merely defective and not void. Coffin v. Cox, 78 Idaho 111, 298 P.2d 742 (1956).

Objection to appeal bond signed by a married woman living with her husband was waived where the appellee failed to file an objection within 20 days. Coffin v. Cox, 78 Idaho 111, 298 P.2d 742 (1956).

Authority to Contract.

It is not necessary for husband to join with wife in the conveyance or encumbrance of her real estate. Wife may, independently of her husband, enter into contracts with reference to her separate property. Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775 (1912).

Rights of married women to contract have been greatly enlarged by statute and her rights in this regard are governed by statute and not by common law. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972).

This section gives married woman management control and absolute power of disposition of her separate property and authorizes her to enter into contracts with reference to such property. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972).

Married woman has absolute control of her separate property and may dispose of it and contract with reference to it in same manner and to same effect as feme sole. Boise Ass’n of Credit Men v. Glenns Ferry Meat Co., 48 Idaho 600, 283 P. 1038 (1930).

Constitutionality.

This section is not unconstitutional as denying the wife freedom of contract or equal protection of law. Craig v. Lane, 60 Idaho 178, 89 P.2d 1008 (1939), overruled on other grounds, Coffin v. Cox, 78 Idaho 111, 298 P.2d 742 (1956).

Contract with Husband.

Wife who loans proceeds of separate property to husband becomes one of his creditors, and rights as such are governed by same legal principles as other creditors. Wilkerson v. Aven, 26 Idaho 559, 144 P. 1105 (1914); Bates v. Papesh, 30 Idaho 529, 166 P. 270 (1917).

A married woman can enter into a contract for property settlement with her husband. Parke v. Parke, 76 Idaho 168, 279 P.2d 631 (1955).

Conveyance by Husband.

Estoppel.

Wife has sole management and control of her separate property and husband has no right to convey or encumber same without her consent. Blaine County Nat’l Bank v. Timmerman, 42 Idaho 338, 245 P. 389 (1926). Estoppel.

Married woman who placed her husband in possession of her separate property and permitted him to manage it as his own was estopped from asserting ownership of property when it would result in the loss of a debt contracted by her husband. Boise Butcher Co. v. Anixdale, 26 Idaho 483, 144 P. 337 (1914).

Incident to power of married women to deal with others is capacity to be bound and estopped by their conduct, and enforcement of principle of estoppel is necessary for protection of those with whom they deal. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972).

Foreign Contracts.

Contract entered into by married woman in a state where her common-law disabilities have been removed will be enforced here, even though not made for her own use or for the benefit of her separate estate. Meier & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5 (1917), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Improvements.

Married woman may contract for improvements upon her separate property. Bassett v. Beam, 4 Idaho 106, 36 P. 501 (1894).

Joint Obligations.

It is error to render judgment jointly against husband and wife on a note signed by both, in absence of a showing that debt was created for the separate use and benefit of wife, or for the use and benefit of her separate estate. Jaeckel v. Pease, 6 Idaho 131, 53 P. 399 (1898). But see Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Where wife joins her husband in warranty deed conveying his separate property, and for conveyance of which husband receives the consideration, wife is not liable in any action for breach of covenant of warranty, for reason that such contract and covenant of warranty is not made with reference to wife’s separate property or for her own use or benefit. Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66 (1913). But see Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Where husband and wife both signed a contract for the purchase of community property, it was proper for the judgment creditor to proceed by execution against the wife’s separate property to satisfy a joint judgment he had obtained against her and her husband. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Liability for Debts.

Married woman may contract debts for the use and benefit of her separate property, or for her own use and benefit, and thereby charge her separate property. Dernham v. Rowley, 4 Idaho 753, 44 P. 643 (1896); McFarland v. Johnson, 22 Idaho 694, 127 P. 911 (1912).

The court concluded that defendant made the transaction to purchase 50 per cent of the cab stock in her own right, she dealing with the sellers sui juris, knowing her husband had no property or credit and that the community had no property or credit, therefore the obligation represented by the note was her individual and separate obligation and her separate property was liable for the payment thereof. Frost v. Mead, 86 Idaho 155, 383 P.2d 834 (1963), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976). When a married woman has entered into a contract, whether the contract was made for her own use or benefit or for the use or benefit of her separate property, or otherwise, her judgment creditor under the contract may execute upon her separate property for the satisfaction of any judgment rendered against her. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976), overruling, Bank of Commerce, Ltd. v. Baldwin, 12 Idaho 202, 85 P. 497 (1906),; Bank of Commerce, Ltd. v. Baldwin, 14 Idaho 75, 93 P. 504 (1908); Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909); Meier & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5 (1917); Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921); Ness v. Coffer, 42 Idaho 78, 244 P. 145 (1925); Loomis v. Gray, 60 Idaho 193, 90 P.2d 529 (1939); Livingston v. Parish, 81 Idaho 473, 346 P.2d 1047 (1959); Frost v. Mead, 86 Idaho 155, 383 P.2d 834 (1963), to the extent they are inconsistent with this case.

Life Insurance.

Because spouses have independent control over their own separate property, if a term life insurance policy is a husband’s separate property, he can designate a new beneficiary without his wife’s consent, and that beneficiary is entitled to the policy proceeds upon his demise. Banner Life Ins. Co. v. Mark Wallace Dixson Irrevocable Trust, 147 Idaho 117, 206 P.3d 481 (2009).

Mortgages.

Married woman may execute a valid accommodation mortgage on her separate property. Vanderpool v. Bank of Hansen, 2 F.2d 877 (D. Idaho 1924).

Mortgage of wife’s separate property, signed by her, but not acknowledged, is as binding upon her separate estate as mortgage upon separate property of husband executed in like manner. Knudsen v. Lythman, 33 Idaho 794, 200 P. 130 (1920).

Personal Judgment Against Wife.

Words “assessed against community property,” appearing in personal judgment against wife, import a contradictory meaning. Briggs v. Mason, 44 Idaho 283, 256 P. 368 (1927).

Preexisting Indebtedness.

Assumption by married woman of preexisting indebtedness, as well as the indebtedness contracted in the course of the business after she became owner, were contracts in relation to her separate property. Boise Ass’n of Credit Men v. Glenns Ferry Meat Co., 48 Idaho 600, 283 P. 1038 (1930).

Purpose.

The purpose of this section was to give married women the same contractual rights and responsibilities with respect to their separate property as those enjoyed by married men. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Right to Sue.

Married woman is given absolute control of her separate property, which includes right to bring an action for protection of her separate property. Salisbury v. Spofford, 22 Idaho 393, 126 P. 400 (1912). Married woman may recover for injury to her separate property. Boggs v. Seawell, 35 Idaho 132, 205 P. 262 (1922).

Support of Family.

No obligation rests on wife to support family out of separate property, unless there is no community property and husband is too infirm to support himself. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Unauthorized Acts of Husband.

In order to protect her separate property from liability for the husband’s unauthorized acts, the wife need not openly repudiate them. Loomis v. Gray, 60 Idaho 193, 90 P.2d 529 (1939), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1977).

Cross References.

Distribution of property upon divorce,§§ 32-712 to 32-714.

Marriage settlements,§§ 32-918 to 32-920.

Statutory Formalities.

Although a husband and wife may elect at any time to change the character of their property from separate to community and vice versa, they may do so only in the manner provided or permitted by Idaho statutes, including§§ 32-917 — 32-919, by engaging in certain formalities; consequently, in dividing property in a divorce proceeding, the magistrate acted properly when she refused to recognize an alleged oral or informal agreement alleged to have transmuted a wife’s separate real property into community property during the marriage where there was no evidence of compliance with any of the statutory formalities. Stockdale v. Stockdale, 102 Idaho 870, 643 P.2d 82 (Ct. App. 1982).

Prior Laws.

Former§ 32-906, which comprised 1867, p. 65, § 2; R.S., § 2497; reen. R.C. & C.L., § 2680; C.S., § 4660; I.C.A.,§ 31-907; am. S.L. 1943, ch. 23, § 1, p. 51, was repealed by S.L. 1980, ch. 300, § 1.

Bankruptcy.

Debtor’s motion seeking turnover of prorated portion of her federal tax refund was denied. Because the refund was community property subject to equal management by either spouse, all of the prorated tax refund constituted property of the debtor’s bankruptcy estate and was available to satisfy creditors’ claims incurred by the debtor before her marriage. In re Martell, 349 B.R. 233 (Bankr. D. Idaho 2005).

Because a debtor and his wife purchased a vehicle during their marriage, it was presumed to be community property under this section, and they did not rebut this presumption by testifying that the vehicle was purchased with funds from the wife’s separate bank account. A Chapter 7 trustee could avoid a transfer of the vehicle from debtor to his wife, as constructively fraudulent under 11 U.S.C.S. § 548(a)(1)(B),§ 55-914(1), and§ 55-913(1)(b), as the transfer occurred within the applicable reach back period, the debtor was insolvent at the time, and he transferred the vehicle for less than reasonably equivalent value. Rainsdon v. Kirtland (In re Kirtland), 2011 Bankr. LEXIS 3828 (Bankr. D. Idaho Sept. 30, 2011).

Commingling of Property.

When separate and community property are commingled so that tracing is impossible, it is presumed to be community property, and the burden is on the person asserting the separate character of the property; when direct tracing is impossible, the party may employ indirect evidence in the form of an accounting. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Where the trial court traced the assets in each of the husband’s bank accounts to the separate property of husband acquired before marriage, and there was no community income from the separate property, there was no commingling of the funds and the property remained husband’s separate property; the assets purchased with these funds were also his separate property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982). Where husband failed to accurately trace the sale proceeds, which were commingled in a joint checking account, the magistrate court did not err in presuming that proceeds from the sale of husband’s business were community property, as the business was started during the marriage with clients who were acquired during the marriage. Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019).

Community Expenditure on Separate Property.

When a husband uses community property to improve his wife’s separate estate, a gift of his community share is no longer presumed; therefore, the community should have been compensated for its payment of income taxes on the wife’s share of reported partnership earnings which were her separate property, if the payments of income taxes were intended as a gift of husband’s community share to the wife’s separate estate. Brazier v. Brazier, 111 Idaho 692, 726 P.2d 1143 (Ct. App. 1986), overruled on other grounds, Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

In a divorce action, the magistrate’s decision to deny reimbursement to the community for alleged enhancements to the husband’s separate property due to expenditures of community funds and labor was supported by substantial competent evidence, because some of the alleged improvements were made before the marriage, and the wife failed to demonstrate that the community expenditures enhanced the value of the husband’s separate property and the amount of the enhancement. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

Community was entitled to reimbursement for the funds expended towards the property taxes on the husband’s separate property home, because the value of the home was enhanced by those payments. Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019).

Compensation for Separate Property Business.

Whenever one party to a marriage claims that he or she is entitled to share in the increase in value of a separate property business in which one of the parties was an employee during the marriage, the proper inquiry upon dissolution of the marriage is whether the community has been adequately compensated for its labor. In determining adequate compensation, a three-pronged analysis is called for; first, business factors such as, inter alia, type, size and growth pattern should be considered; second, once the business factors have been considered, the question is whether the overall compensation received by the community was equivalent to the compensation that would have been necessary to secure a non-owner employee to perform the same services the community rendered; and third, if it is found that the community has been under-compensated, the community is then entitled to a judgment against the owner-spouse equivalent to the deficiency found. If, however, no deficiency is found, the community has no claim. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Conveyance to Spouse.

Property acquired by husband subsequent to the first divorce from, and prior to second marriage to, the same woman, was his sole and separate property; a gift to the woman of an undivided one-half interest in the same property which was also made between the divorce and remarriage became wife’s sole and separate property, which interest she later conveyed to a corporation. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982). Wife, having offered a document in an attempt to prove that its contents transmitted certain property from separate status to community property status, failed to sustain her burden of proving a transmutation, and also failed to demonstrate that the formalities required in§§ 32-917 through 32-919 had been followed. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Where husband, during marriage, executed a quitclaim deed to ranch property to his wife as her separate property and in accordance with the requirements of§ 55-601, husband’s testimony as to lack of consideration was inadmissible and his evidence insufficient to rebut the presumption of this section; therefore, finding that property was wife’s separate property was upheld. Bliss v. Bliss, 127 Idaho 170, 898 P.2d 1081 (1995).

Where a debtor and his wife purchased a motorcycle prior to their marriage, it was not community property under this section; so when the debtor transferred his interest in the motorcycle to his wife after their marriage, it was her separate property from that time forward under§ 32-903. Because the motorcycle became her separate property at that time, the debtor did not transfer an interest in the motorcycle to his wife within the applicable reach back period in 11 U.S.C.S. § 548(a) or in the four-year period provided in§ 55-918, as applicable to the fraudulent transfer provisions in§§ 55-913(1)(a), (1)(b) and 55-914(a). Rainsdon v. Kirtland (In re Kirtland), 2011 Bankr. LEXIS 3828 (Bankr. D. Idaho Sept. 30, 2011).

Debenture Notes.

Where the debenture notes were obtained with both the husband’s separate property and the retained earnings which were community property, the income from the notes, whether paid or accrued, was community property under this section. Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).

Determination of Community Property.

Trial court’s finding that two parcels of land were community property and not husband’s separate property was proper where witnesses presented contradictory testimony and husband failed to produce quitclaim deed he contended had been executed by his father to him before the marriage stating that deed was lost. Krebs v. Krebs, 114 Idaho 571, 759 P.2d 77 (Ct. App. 1988).

Husband asserted that the parties never established the requisite “marital community” to which benefits and detriments would accrue, demonstrated by the brevity of the marriage and the fact that it was troubled from its onset, but it is within the discretion of the trial court to determine whether there were any compelling reasons that would justify a division of the community property that is not substantially equal and the magistrate’s findings and conclusion reveal that the magistrate 1) understood that the division of the community was within the magistrate’s discretion, 2) acted within the outer boundaries of the discretion and consistent with the legal standards provided in§ 32-712(1), and 3) reached the decision by an exercise of reason; therefore, there was no abuse of discretion in dividing the community. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

Risk payment theory is the appropriate method for determining the character of term life insurance policy proceeds. Although the policy proceeds are presumptively community property where the policy is acquired during the marriage, the presumption can be overcome by a showing that the last premium was paid with the insured’s separate property. Banner Life Ins. Co. v. Mark Wallace Dixson Irrevocable Trust, 147 Idaho 117, 206 P.3d 481 (2009).

Funds Borrowed on Faith of Separate Property.

Money borrowed on the faith and credit of separate property is separate property where the separate estate is the primary source of future repayment; however, if there exists between the spouses an actual, articulated intent that the obligation be separate or community in character, that intent shall control. Gardner v. Gardner, 107 Idaho 660, 691 P.2d 1275 (Ct. App. 1984).

Goodwill Value of Business.

On appeal from the disposition of property following a divorce decree, where the parties did not have an interest in the truck stop until after they were married, and all their labor on behalf of the business occurred during coverture, any goodwill value of the business was community property which should have been valued and distributed upon divorce. Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985).

House as Separate Property.

House remained wife’s separate property, where home was bought with wife’s separate property, and the language used in the post-purchase warranty deed was ambiguous, allowing wife to offer extrinsic evidence of her intent. McCoy v. McCoy, 125 Idaho 199, 868 P.2d 527 (Ct. App. 1994).

Income From Separate Property.

Where income from separate rental property was consumed by community expenses, it could not be considered as generating community income. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

There was substantial competent evidence to support the magistrate’s finding that husband’s payment of interest on his debts did not “pay and discharge” those debts under the terms of an antenuptial agreement, and therefore husband was not required to reimburse the community for the $182,329 of his separate income which he used to pay interest on his separate debts. Weilmunster v. Weilmunster, 124 Idaho 227, 858 P.2d 766 (Ct. App. 1993).

Where there was substantial competent evidence to support the magistrate’s finding that husband’s separate ranching operations sustained net operating losses during the marriage, the pasturage value of husband’s separate ranches did not constitute separate income from his separate property, and therefore did not constitute community property, but was husband’s separate property. Weilmunster v. Weilmunster, 124 Idaho 227, 858 P.2d 766 (Ct. App. 1993).

Income earned from separate property during the marriage, where community labor was expended on the development of that separate venture, is community income, where there is no evidence that the community was otherwise adequately compensated for its labor. Baruch v. Clark, 154 Idaho 732, 302 P.3d 357 (2013).

Income Following Separation.

The earnings of the husband following separation and up to the date of divorce must be included as community property. Desfosses v. Desfosses, 120 Idaho 354, 815 P.2d 1094 (Ct. App. 1991).

Where the evidence indicated no increase in the size of cattle herd during marriage, but rather in fact indicated that the cattle herd had diminished to practically nothing at the death of the decedent husband, the trial court properly determined that there was no community income from the herd, with the possible exception of interest accrued on moneys received from the sale, which moneys were more than exhausted by community expenses. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983). Even though there was no dispute that the sole proprietorships owned by the husband at the time of marriage were his sole and separate property, after marriage, the net income of the proprietorships became community property. Josephson v. Josephson, 115 Idaho 1142, 772 P.2d 1236 (Ct. App. 1989).

Increased Value of Property.

The rule governing the expenditure of community funds on separate property is that the natural increase in the value of a spouse’s separate property during the marriage is generally not community property; however, when 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. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

The measure of reimbursement for community expenditures on separate property is the increase in value of the property attributable thereto, not the amount or value of the community contribution. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

When community labor or funds enhance the value of separate property, the amount of the enhancement is community property for which the community is entitled to reimbursement; the measure of reimbursement is the increase in value of the property attributable to the community contribution, not the amount or value of the community contribution. The party seeking reimbursement to the community carries the burden of proving that the community expenditures have enhanced the value of the separate property, and the amount of the enhancement. Sherry v. Sherry, 108 Idaho 645, 701 P.2d 265 (Ct. App. 1985).

Liability for Debts.

Where husband and wife each owned one-half interest in property as his or her sole and separate property, each was liable for one-half of the debts incurred by those properties; those debts are not community debts, but obligations on each person’s separate property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

The principal payments on husband’s farm loan were necessarily paid from the farm’s net rental income, and the magistrate erred in determining that the community was not entitled to reimbursement. Vanwassenhove v. Vanwassenhove, 134 Idaho 198, 998 P.2d 505 (Ct. App. 2000).

In a divorce action, the wife did not rebut the presumption that the husband’s $15,000 withdrawal from his investment plan was used for the benefit of the community, because the husband testified that he withdrew the $15,000 “to pay bills” above and beyond those he normally would have incurred which were necessitated by the divorce process and the primary reason for the withdrawal was the payment of the debts, and the wife did not rebut the testimony. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

Military Disability Benefits.

Pain and Suffering.

While all property acquired during the marriage is presumed to be community property, military disability benefits received beyond an amount attributable to lost earning power during the marriage are the separate property of the injured spouse; therefore, the military disability benefits received by the husband subsequent to the divorce should be awarded as husband’s separate property. Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984). Pain and Suffering.

An action for pain and suffering does not survive the death of the injured party and this section does not provide that pain and suffering is community property rather than the separate property of an injured spouse. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied, 498 U.S. 1086, 111 S. Ct. 960, 112 L. Ed. 2d 1048 (1991).

Partnership Earnings.

The retained earnings of the separate property partnership interest were community property. Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987), overruling, Brazier v. Brazier, 111 Idaho 692, 726 P.2d 1143 (1986) to extent of conflict.

Personal, Physical and Intellectual Attributes.

A spouse’s knowledge, background and talents, being personal, physical or intellectual attributes, cannot be categorized as property, either separate or community. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Personal attributes can enhance income which, in the absence of an ante-nuptial agreement to the contrary, is community property, however, personal attributes are not property; thus, they cannot be classified as community property, nor can they be apportioned between spouses upon divorce. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Presumption.

A presumption exists that property acquired during marriage is community property and the party asserting the separate nature of such property has the burden of so proving. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

Any assets acquired during marriage are presumed to be community property, with the burden of proof resting upon the party asserting that such assets constitute separate property. Bowlden v. Bowlden, 118 Idaho 84, 794 P.2d 1140 (1990).

Proceeds from Community Property.

The community was not entitled to reimbursement of the proceeds from the farm equipment where a portion of the proceeds was used to purchase a pickup as a graduation gift for the younger son of the parties and the remainder was used to pay community obligations. Vanwassenhove v. Vanwassenhove, 134 Idaho 198, 998 P.2d 505 (Ct. App. 2000).

Property Acquired by Individual.

Where there was no community property, no community property could possibly have been used to contribute to the purchase of husband’s separate property, and consequently the wife had no right to reimbursement for funds spent on separate property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Recovery of Community Property Subsequent to Marriage Settlement.

Repair of Separate Property.

Even though federal law preempted§ 56-218, where a marriage settlement agreement transmuted most of husband’s and wife’s community property and the income from that property into separate property of the husband, the department of health and welfare could recover only community property accumulated after the agreement. Idaho Dep’t of Health & Welfare v. Jackman, 132 Idaho 213, 970 P.2d 6 (1998), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Repair of Separate Property.

When damaged separate property is repaired at the expense of the community, and the repairs are more than minor, routine maintenance, the community should be entitled to full reimbursement, especially where the separate property is nonincome producing and does not generate the funds required for those repairs. Gardner v. Gardner, 107 Idaho 660, 691 P.2d 1275 (Ct. App. 1984).

Retirement Benefits.

Military retirement benefits are classified as community or separate property according to whether the active service upon which the benefits are based took place prior to marriage or after marriage. Thus, in keeping with general community property principles, military retirement benefits are community property to the extent that they were earned during the marriage; conversely, military retirement benefits are separate property to the extent they were earned prior to the marriage. Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984).

A pension fund that is a form of deferred compensation is a community property asset to the extent the fund is acquired during coverture; thus, because the wife’s interest in the pension was earned during the marriage, the entire value of the pension was a community asset. Sherry v. Sherry, 108 Idaho 645, 701 P.2d 265 (Ct. App. 1985).

Where husband’s first eligible retirement date was six months after his divorce and his actual retirement date was four years later, the determination of, and the valuation of, the pension benefits should have occurred at the date of the decree of divorce; however, where such valuation and an award of a lump sum to the wife was not made and appeared to be impossible six years later in an action for redetermination of community interests, the court ruled that an award was necessary based upon the monthly sum which would have been received if the husband had taken retirement at his first eligibility. Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (1988).

In an action by wife, six years after her divorce, for a redetermination of community property interest in husband’s pension benefits, in which wife was awarded one-half of the pension benefits, valued at the time of actual retirement, that award included increases in pension benefits which accrued after the date of divorce, and hence not acquired during marriage, but during the time the husband was an unmarried person. As such, those increases constituted the separate property of the husband, and to the extent that an interest in those post-divorce increases was awarded to the wife, it constituted an impermissible invasion of husband’s separate property. Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (1988).

A qualified domestic relations order is a present separation of future retirement benefits and, under certain circumstances, may be preferable over a cash distribution because it does not place an undue financial strain on either party; but where husband was prepared to make a lump sum payment to wife the magistrate should have included a provision in the qualified domestic relations order that would have given him the option to make a lump sum payment to her within 60 days after judgment was entered representing the present value of her interest in the fixed benefit plan benefits. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

Although the “time rule” method of valuation of the community interest in pension plans could be employed, by calculating community interest in a retirement fund using a ratio of the duration of the marriage with the years of service, it has never been adopted nor held that the “time rule” is the only acceptable method. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991). The evidence presented to the magistrate, which related to the value of the pension benefits, was in the form of account statements showing the contributions made during the marriage and the account balance at the time of marriage and at the time of divorce; any contributions, increases or earnings in the account which occurred prior to the marriage are separate property under§ 32-903, and that portion of the account was reflected in the account balance at the time of marriage; therefore, by subtracting the account balance at the time of marriage from the account balance at the time of divorce, the portion of the contributions and the increases in the account which were acquired during the marriage are identified and there is a rebuttable presumption that all property acquired during marriage — in this case, contributions and increases in the account — is community property. Maslen v. Maslen, 121 Idaho 85, 822 P.2d 982 (1991).

Federal law which authorizes and regulates individual retirement accounts does not preempt Idaho community property law which would characterize individual retirement accounts which were purchased with community funds as community property. In re Estate of Mundell, 124 Idaho 152, 857 P.2d 631 (1993).

Because wife in divorce action was awarded a sum equal to her interest in the military retirement benefits of her husband to be paid in installments, she was entitled to interest accrued at the rate used to discount the retirement benefits to their present value. Balderson v. Balderson, 127 Idaho 48, 896 P.2d 956 (1995), cert. denied, 516 U.S. 865, 116 S. Ct. 179, 133 L. Ed. 2d 118 (1995).

Amount in a wife’s retirement account at the time of marriage was her separate property; however, the husband’s retirement account, though valued less than it was at the time of the marriage, was properly characterized as community property, as he had commingled both separate and community funds in it and he had transferred money out of it to fund his business ventures. Baruch v. Clark, 154 Idaho 732, 302 P.3d 357 (2013).

Salaries.

All salaries are community property, unlike rents and profits where only net proceeds are community property. Martsch v. Martsch, 103 Idaho 142, 645 P.2d 882 (1982).

Sole Proprietorship Business.

Although sole proprietorship business and its assets were clearly husband’s separate property prior to marriage, where husband did not maintain the integrity of separateness, any remaining assets were community property, even where the value of the business suffered a decline over the term of the marriage. Wood v. Wood, 124 Idaho 12, 855 P.2d 473 (Ct. App. 1993).

Social Security Benefits.

Congress has positively required by direct enactment that state law be preempted with regard to whether social security benefits received during marriage are community property, as treatment of social security benefits paid during marriage as community property would do major damage to clear and substantial federal interests. Bowlden v. Bowlden, 118 Idaho 89, 794 P.2d 1145 (Ct. App. 1989).

Statutory Formalities.

Although a husband and wife may elect at any time to change the character of their property from separate to community and vice versa, they may do so only in the manner provided or permitted by Idaho statutes, including§§ 32-917 — 32-919, by engaging in certain formalities; consequently, in dividing property in a divorce proceeding, the magistrate acted properly when she refused to recognize an alleged oral or informal transmutation of a wife’s separate real property into community property during the marriage where there was no evidence of compliance with any of the statutory formalities. Stockdale v. Stockdale, 102 Idaho 870, 643 P.2d 82 (Ct. App. 1982).

Trust Income.

Where former husband acquired a noncontingent right to 30% of trust corpus immediately upon the death of his father and this right could not be augmented nor diminished by the trustee, and the only contingency was the ability of the trustee to sell the trust assets and make distributions as soon as possible, from the time of father’s death, the trustee of the father’s trust was under a legal obligation to render an accounting of the trust assets to the trust beneficiaries, and to distribute to former husband 30% of the trust corpus as required by the trust document; although possession was delayed until distribution, the right to 30% of the trust corpus was acquired immediately upon the death of father and while the 30% interest acquired by former husband was his separate property, pursuant to this section, the income from the date of death of father on that 30% interest, if any, would be community property and should have been accounted for and divided upon the dissolution of the marriage. McDonald v. Paine, 119 Idaho 725, 810 P.2d 259 (1991).

Valuation of Marital Assets.

Where date of divorce rather than date of separation was used for valuation of marital assets, all the debts and assets of both parties accumulated during the period between the separation and divorce must be considered in the final equitable disposition of all the marital assets. Beesley v. Beesley, 114 Idaho 536, 758 P.2d 695 (1988).

Decisions Under Prior Law

Liability for debts. Liability for torts.

Abandonment.

A wife who leaves her husband, whether in the wrong or not, is entitled to share in the community property up to the time of her act of abandonment. Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

Agreements Between Spouses.

Where the husband and wife, domiciled in Oregon, executed a written agreement by which they undertook to convert into community property all property then owned by them or thereafter to be acquired, the wife, by virtue of such agreement, obtained a vested community interest in land located in Idaho, and, theretofore, separately owned by the husband. Black v. Commissioner, 114 F.2d 355 (9th Cir. 1940).

Community Property.

Cases in which property was held to be community property are as follows:

Mining property acquired under laws of the United States during coverture. Jacobson v. Bunker Hill & Sullivan Mining & Concentrating Co., 3 Idaho 126, 28 P. 396 (1891).

Where property did not appear in records to be separate property. Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104 (1897).

Recovery for injury to wife for loss of earnings to community. Giffen v. Lewiston, 6 Idaho 231, 55 P. 545 (1898).

Preemption filing under laws of the United States when final proof and payment is made. Kneen v. Halin, 6 Idaho 621, 59 P. 14 (1899).

Mortgaged property on which mortgages were executed by both husband and wife, there being no allegations that it was separate estate. Strode v. Miller, 7 Idaho 16, 59 P. 893 (1900).

Real estate conveyed to the wife during coverture. Stowell v. Tucker, 7 Idaho 312, 62 P. 1033 (1900).

Property acquired by joint effort of two members of community or their individual and separate efforts. Kohny v. Dunbar, 21 Idaho 258, 121 P. 544 (1912).

Receipts from disposition of community property. Kohny v. Dunbar, 21 Idaho 258, 121 P. 544 (1912).

Property assessed to husband, sold to third party on tax deed, repurchased by wife. Meserole v. Whitney, 22 Idaho 543, 127 P. 553 (1912).

Personal property alleged to have been purchased with wife’s money where claim was apparently in fraud of creditors. McDonnell v. Jones, 25 Idaho 551, 128 P. 1123 (1914).

Wife’s earnings while living with her husband, in absence of any agreement to the contrary or gift by husband. Ahlstrom v. Tage, 31 Idaho 459, 174 P. 605 (1918); McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929). Where defendant wife’s father had transferred to her certain stocks and moneys to enable her to care for her mother, the transfer indicating that she was to act as trustee, when she dealt with these stocks as her own, leading her husband to believe that the stocks or a major portion thereof were her own property, the dividends from such stocks were community property. Jolley v. Jolley, 83 Idaho 433, 363 P.2d 1020 (1961).

It was not the intent of the motor vehicle act that the issuance of certificate of title to an automobile to the wife would conclusively establish the title in her as separate property especially where there was no gift or other transfer by the husband to her of the automobile and it had been purchased with community funds; it became community property. Farmers Ins. Exch. v. Wendler, 84 Idaho 114, 368 P.2d 933 (1962).

The income of husband during three-year separation was income that met the terms of this section and became community property regardless of its status as income from his separate property or from the community property over which he exercised the use and control during the separation; accordingly, the district court was correct in including as community property farm machinery and trucking equipment, which remained in husband’s control, with their valuation fixed as of the time of the trial rather than at time of separation. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

The explicit language of this section requires that the earnings of husband after separation be included as community property since a marriage continues, despite a separation, until a decree of divorce. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

The natural increase in value of a spouse’s separate property during the marriage generally is not community property; however, when 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. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

The measure of the reimbursement for community expenditures on separate property is the increase in value of the property attributable thereto, not the amount or value of the community contribution; the party seeking such reimbursement to the community carries the burden of demonstrating that the community expenditures have enhanced the value of the separate property, and the amount of the enhancement. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

Where, under the terms of his employer-financed group term disability insurance policy, the husband received benefits which were paid as partial consideration for past employment, and he was married during the last three years that he was able to work, the disability benefits were community property. Guy v. Guy, 98 Idaho 205, 560 P.2d 876 (1977).

Where parents gave their son the deed to a farm in return for an annuity contract which was of less value and declared that the difference in value was a gift to the son, the son had a separate property interest in the farm equivalent to that value differential and the remainder of the farm was community property of the son and his wife. Stanger v. Stanger, 98 Idaho 725, 571 P.2d 1126 (1977).

Decedents’ Estates.

While sole and separate property of widow need not be included in accounting as executrix, community property of widow and deceased husband must be so included. Blake v. Blake, 69 Idaho 214, 205 P.2d 495 (1922). In suit against legal but separated wife of deceased husband by other party with whom he had been living, separated wife was legal heir and other party was not de facto or common law wife and was not entitled to proceeds of estate. In re Reichert, 95 Idaho 647, 516 P.2d 704 (1973).

Division on Divorce.

In computing the amount of net community income available for division between the spouses in a divorce proceeding, where there were no tax returns for the first four months of marriage, it was not error for the court to compute the amount of income for the first four months by taking one third of the husband’s yearly income. Houska v. Houska, 97 Idaho 316, 543 P.2d 869 (1975).

In computing the amount of net community income available for division between the spouses in a divorce proceeding, the court was justified in relying on income tax returns as the measure of income rather than comparing the beginning and the ending net worth of assets. Houska v. Houska, 97 Idaho 316, 543 P.2d 869 (1975).

In a divorce proceeding where the parties stipulated that only the income and expenses through the year 1969 need be considered by the court in computing the net community income available for division, the court did not err in failing to consider a loss sustained by the husband in 1970. Houska v. Houska, 97 Idaho 316, 543 P.2d 869 (1975).

Gift to Spouse.

Husband may give to his wife his interest in any community property or in her earnings, so long as it is not done in fraud of creditors. Gooding Milling & Elevator Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772 (1912).

In General.

Property of husband and wife is divided into two classes, namely, separate property of each spouse, and community property. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Term “community property” specifically excludes separate property of husband or wife. Briggs v. Mason, 44 Idaho 283, 256 P. 368 (1927).

Joint Bank Accounts.

Income deposited in a joint bank account from plaintiff-husband’s separate business properties was held to be community property. Shovlain v. Shovlain, 78 Idaho 399, 305 P.2d 737 (1956).

Where a joint bank account was commingled, regarded and treated as community funds, under such circumstances, it became community property. Rose v. Rose, 82 Idaho 395, 353 P.2d 1089 (1960).

Liability for Debts.

Wife cannot bind her husband nor community property for counsel fees in a divorce action. Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228 (1886).

Liability for Torts.

Wife cannot, either directly or indirectly, make community property liable for her debts which are contracts for the benefit of her separate property or for her own use and benefit. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976). Liability for Torts.

Defendant husband committed the battery complained of while he was actively and actually engaged in the management of the community business, the operation of a bar, and what he did in using a tear gas gun on plaintiff was intended to be for the protection of community property and in the interest of the community business; therefore under such circumstances, the community was responsible for his tort. Hansen v. Blevins, 84 Idaho 49, 367 P.2d 758 (1962).

Pension Benefits.

Although defendant-husband fireman could not draw his pension, until he completed 20 years of service, the pension was not earned on the last day of the twentieth year of employment, but was a form of deferred compensation attributable to the entire period in which it accumulated, and the portion of pension rights earned during marriage constituted a contingent community property interest subject to consideration and division upon divorce. Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979).

A firefighter’s interest in the pension fund attributable to fund income from sources other than employee contributions is not a gratuity but a form of deferred compensation accrued by reason of the individual’s service and is also a community property asset to the extent acquired during coverture. Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979).

Where husband, a fireman for 19 and one-half years, and wife were divorced, the trial court erred in holding the value of the couple’s community property interest in the fund on the date of divorce was the cash surrender value of $8,089.24. Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979).

Presumptions.

All property acquired by either spouse during coverture is presumed to be community property. Presumption may be rebutted but burden of proof rests upon party who asserts it is separate property to show such fact by a preponderance of evidence. Jacobson v. Bunker Hill & Sullivan Mining & Concentrating Co., 3 Idaho 126, 28 P. 396 (1891); Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104 (1897); Stowell v. Tucker, 7 Idaho 312, 62 P. 1033 (1900); Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775 (1912); Douglas v. Douglas, 22 Idaho 336, 125 P. 796 (1912); Gooding Milling & Elevator Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772 (1912); Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66 (1913); Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468 (1915); Clifford v. Lake, 33 Idaho 77, 190 P. 714 (1920); Boggs v. Seawell, 35 Idaho 132, 205 P. 262 (1922); Bannock Nat’l Bank v. Automobile Accessories Co., 37 Idaho 787, 219 P. 200 (1923); McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1955).

In absence of proof to the contrary, presumption arises in courts of this state that community property law prevails in a sister state, same as it prevails in this state. Douglas v. Douglas, 22 Idaho 336, 125 P. 796 (1912).

Where contract for purchase of realty named both husband and wife, and there was no recital that it was separate property of wife, some of payments being made out of husband’s bank deposits, presumption was that property was community property. Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090 (1929). Note acquired by wife from husband during coverture will be presumed community property, rather than wife’s separate property, unless contrary is proved. Swager v. Peterson, 49 Idaho 785, 291 P. 1049 (1930).

A deed from a mother to her son was, as to the son’s wife, under this section, presumed to be community property and, under such circumstances, the burden was upon anyone attempting to show that it was not such. Aker v. Aker, 52 Idaho 713, 20 P.2d 796, cert. denied, 290 U.S. 587, 54 S. Ct. 80, 78 L. Ed. 518 (1933).

Where property was acquired approximately four years after marriage and title was taken in the names of both parties as husband and wife, there was a disputable yet prima facie presumption that the property was community property. The burden is on the one asserting against such presumption to establish the non-existence of its community character. Rose v. Rose, 82 Idaho 395, 353 P.2d 1089 (1960).

Any asset acquired during marriage is rebuttably presumed to be community property and the burden of proof rests with the party asserting a separate property interest. Guy v. Guy, 98 Idaho 205, 560 P.2d 876 (1977).

Property Acquired Out of State.

Where deceased acquired 20 shares of stock while married in Idaho, which were subsequently increased to 21,204 shares after deceased and his wife left Idaho, and where stock was transferred to a trust established thereafter for the benefit of children of the deceased, such trust would be considered the separate property of the deceased for income tax purposes since it was impossible to trace the 20 shares into the subsequent fortune. Chase Nat’l Bank v. Commissioner, 225 F.2d 621 (8th Cir. 1955), cert. denied, Thompson v. Commissioner, 350 U.S. 965, 76 S. Ct. 434, 100 L. Ed. 838 (1956).

Property acquired out of state as separate property and brought here or transmuted into property here retains its separate character. Douglas v. Douglas, 22 Idaho 336, 125 P. 796 (1912); Gooding Milling & Elevator Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772 (1912).

Rents and Profits.

“Rents” and “profits,” as used in this section, mean net rents and profits, and not gross income. Malone v. Malone, 64 Idaho 252, 130 P.2d 674 (1942).

Wife was entitled to one-half interest in advance rent paid on husband’s separate property in the absence of evidence showing rent was not net profit. Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954).

As earnings from husband’s separate property business were never distributed by the corporation, they were not “income” or “rents and profits” and retention of earnings by the business could not be considered as community funds invested in noncommunity property. Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314 (1974).

Retained earnings of a corporation in which husband owns stock are not “rents and profits” where it does not appear that husband was using this as a method to deprive the community of earnings and where such earnings were not due to community labor. Simplot v. Simplot, 96 Idaho 239, 526 P.2d 844 (1974).

Rights of Action.

Right to sue for damages for personal injuries to married woman is a chose in action and is community property. Labonte v. Davidson, 31 Idaho 644, 175 P. 588 (1918); Muir v. Pocatello, 36 Idaho 532, 212 P. 345 (1922). A surviving spouse was allowed to file a motion to be substituted as plaintiff for her deceased husband’s personal injury action for damages which accrued prior to the death of the husband for depletion of community assets, reduction of the ability of the community to earn income, costs and expenses chargeable against community property, and the general damages for pain and suffering. Doggett v. Boiler Eng’g & Supply Co., 93 Idaho 888, 477 P.2d 511 (1970).

Rights of Husband and Wife.

Husband and wife are equal partners in community estate. Kohny v. Dunbar, 21 Idaho 258, 121 P. 544 (1912); Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

No distinction is made between husband and wife as to degree, quantity, and nature or extent of interest each has in community property. Ewald v. Hufton, 31 Idaho 373, 173 P. 247 (1918); Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

Wife’s interest in community property is vested interest of same nature and extent as that of her husband. Muir v. Pocatello, 36 Idaho 532, 212 P. 345 (1922).

In this jurisdiction, the interest of the wife in community property is a present vested interest, equal in degree, nature and extent to that of the husband. Hansen v. Blevins, 84 Idaho 49, 367 P.2d 758 (1962).

Source of Funds for Purchase of Property.

Crucial question in determining status of real property granted to two named parties, the second party being referred to as “his wife,” is the source of funds from which it was purchased. Rose v. Rose, 82 Idaho 395, 353 P.2d 1089 (1960).

Property purchased with borrowed money by either spouse during existence of community is community property. Northwestern & P. Hypotheek Bank v. Rauch, 7 Idaho 152, 61 P. 516 (1900); Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468 (1915).

Property purchased in name of wife, partly with funds of her separate estate and partly with money borrowed during existence of community, is the separate estate of wife to the extent to which funds of her separate estate are used, and community property to the extent to which such borrowed money was used in its purchase. Northwestern & P. Hypotheek Bank v. Rauch, 7 Idaho 152, 61 P. 516 (1900).

A life insurance policy acquired with community funds, and whose premiums are paid with community funds, is a part of the community. Anderson v. Idaho Mut. Benefit Ass’n, 77 Idaho 373, 292 P.2d 760 (1956).

The fact that real property was purchased by the husband and wife with joint tenancy funds does not create a joint tenancy with right of survivorship in the realty. Greene v. Cooke, 96 Idaho 48, 524 P.2d 176 (1973).

Transfers to Third Parties.

Where insured wife made a change of beneficiary from her husband to her daughter without the consent and knowledge of her husband, thus attempting to make a gift of the proceeds of the policy to the daughter, since premiums had been paid with community funds, the change of beneficiary was voidable insofar as it applied to husband’s half interest. Anderson v. Idaho Mut. Benefit Ass’n, 77 Idaho 373, 292 P.2d 760 (1956).

Workers’ Compensation Benefits.

Where property, or the right to receive property, is acquired during marriage as compensation for some right personal to one spouse alone, that property takes its character from the right violated and is the separate property of the injured spouse; accordingly, the right to workers’ compensation payments received because of work-related injuries suffered by one spouse during the marriage is the separate property of that spouse and not the community property of the couple after a divorce. Cook v. Cook, 102 Idaho 651, 637 P.2d 799 (1981).

ALR.

Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses. 94 A.L.R.3d 176.

Spouse’s liability, after divorce, for community debt contracted by other spouse during marriage. 20 A.L.R.4th 211.

Validity and effect of one spouse’s conveyance to other spouse of interest in property held as estate by entireties. 18 A.L.R.5th 230.

Spouse’s professional degree or license as marital property for purposes of alimony, support, or property settlement. 3 A.L.R.6th 447.

Divorce and separation: Health insurance benefits as marital asset. 81 A.L.R.6th 655.

Compiler’s Notes.

The phrase “the effective date of this section” near the beginning of the first and second sentences in this section refers to the effective date of S.L. 1973, ch. 159, § 1, which was effective March 13, 1973.

Compiler’s Notes.

This section was held unconstitutional in Suter v. Suter , 97 Idaho 461, 546 P.2d 1169 (1976).

Constitutionality.

The unequal treatment accorded a husband and wife through the operation of this section is arbitrary on its face and demonstrates no substantial relation to the object of community property legislation; this section creates an unconstitutional distinction in the division of marital property upon divorce and therefore is a denial of the equal protection of the laws as guaranteed in the Fourth Amendment of the Constitution of the United States. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

Since the basic concept of community property law is to recognize that all property acquired during marriage is presumably community property, the exception created by this section to this basic principle must fall. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

Division Upon Divorce.

Although the voidance of this section will render both spouses’ post-separation earnings community property,§ 32-712 provides for the just assignment of community property upon the dissolution of the marriage, regardless of the ground for divorce; the inclusion of all post-separation earnings of both spouses as community property, therefore, neither prohibits nor requires that they be assigned to the spouse who earned them. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

Community Property as Collateral.

This section and§§ 32-903, 32-911, and 32-912 suggest that one spouse can obligate the community property of the marital estate and make that property available to a creditor desiring to execute on that property in the event of loan default, in the case of an unsecured loan incurred without the signature of the other spouse to the promissory note or loan obligation. Cases construing these statutes, however, attach significant qualifications to this conclusion.OAG 05-1.

Cross References.

Liability for debts during coverture in management of separate estate,§ 32-904.

Debts of Husband.

In order to charge separate property of wife with liability for debt it must be alleged and proved that debt was incurred for the use or benefit of her separate property, or was contracted by her for her own use and benefit; debts contracted by husband for his own benefit or for the use of his family can not subject the separate property of wife to liability therefor. Dernham v. Rowley, 4 Idaho 753, 44 P. 643 (1896); Holt v. Gridley, 7 Idaho 416, 63 P. 188 (1900).

Wife is not personally liable for debts of her husband, and neither is her separate property. McFarland v. Johnson, 22 Idaho 694, 127 P. 911 (1912).

Under the law of the state of Idaho, the wife is not personally liable for the debts of her husband. In order to hold the wife responsible, it must be alleged and proved that the debt was incurred for the benefit of her separate property. Browder v. Cook, 59 F. Supp. 225 (D. Idaho 1944).

In a joint Chapter 7 bankruptcy petition where the husband and wife debtors divorced prior to the closing of administration, under 11 U.S.C.S. § 726(c), the wife’s separate property was liable for payment of allowed administrative claims, any allowed community claims, and for payment of any allowed claims flowing from her separate debts; however, 11 U.S.C.S. § 726(c) did not allow a distribution of the wife’s separate property to holders of claims that were enforceable only against the husband’s separate property. In re Hicks, 300 B.R. 372 (Bankr. D. Idaho 2003).

Debts of Wife.

Married woman may contract debts after her marriage and subject her separate property to liability therefor. Bassett v. Beam, 4 Idaho 106, 36 P. 501 (1894).

Separate property of wife is liable for her own debts contracted before or after marriage. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972).

The court concluded that defendant made the transaction to purchase 50 per cent of the cab stock in her own right, she dealing with the sellers sui juris, knowing her husband had no property or credit and that the community had no property or credit; therefore, the obligation represented by the note was her individual and separate obligation and her separate property was liable for the payment thereof. Frost v. Mead, 86 Idaho 155, 383 P.2d 834 (1963), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Foreign Contract.

Contract entered into by married woman in state where her common-law disabilities have been removed will be enforced here. There is nothing wicked or immoral or contrary to public policy in permitting wife’s separate property to become liable for payment of her husband’s debts or community debts; nor is there anything in the statutes to indicate that the public policy of the state would be violated by enforcing a valid contract made by a married woman in a sister state. Meier & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5 (1917), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Joint Contract.

Where husband and wife both contract to purchase a parcel of real estate, the purchase-price is as much debt of wife as of husband. Tipton v. Ellsworth, 18 Idaho 207, 109 P. 134 (1910).

Necessities.

Where necessaries are furnished wife upon her special contract and on her personal responsibility to pay therefor, she can be held to pay debt, and to that end may be sued as a feme sole. In such case, debt is incurred for her use and benefit. Edminston v. Smith, 13 Idaho 645, 92 P. 842 (1907).

There is no obligation on wife to support family out of her separate property unless there is no community property and husband is too infirm to support himself. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Notes.

Married woman is liable on her negotiable promissory note given in payment of an assessment on bank stock purchased by her and carried in her name. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972).

Cited

Married woman is liable on her negotiable promissory note given for money expended by her for her son and for medical attendance for herself, where she subsequently renews the note after its transfer in due course to an innocent holder. Overland Nat’l Bank v. Halveston, 33 Idaho 489, 196 P. 217 (1921), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1972). Cited Bank of Commerce, Ltd. v. Baldwin, 14 Idaho 75, 93 P. 504 (1908); Hansen v. Blevins, 84 Idaho 49, 367 P.2d 758 (1962).

Community Property as Collateral.

This section and§§ 32-903, 32-910, and 32-912 suggest that one spouse can obligate the community property of the marital estate and make that property available to a creditor desiring to execute on that property in the event of loan default, in the case of an unsecured loan incurred without the signature of the other spouse to the promissory note or loan obligation. Cases construing these statutes, however, attach significant qualifications to this conclusion.OAG 05-1.

Cross References.

Assignment of community property on dissolution of marriage,§ 32-712.

Conveyances between spouses permitted,§ 32-906.

Compiler’s Notes.

Most of the cases annotated under this section were decided prior to the 1974 amendment to this section and some of the holdings may be questionable or outdated in light of such amendment and current equal protection law since they presume all control of community property to be vested in the husband. Where a holding appears particularly questionable, the words “(decision prior to 1974 amendment)” have been added to the case citation.

Actions.

Husband is the only necessary party in suit to recover damages for personal injuries to wife and for expenses incurred for medical attendance and hospital fees, and need not join wife in such action. Labonte v. Davidson, 31 Idaho 644, 175 P. 588 (1918) (decision prior to 1974 amendment).

Where wife enters and settles upon homestead and marries before entitled to make final proof, homestead is her separate property and she may sue in protection thereof. Boggs v. Seawell, 35 Idaho 132, 205 P. 262 (1922).

Married woman has such interest in cause of action for injuries to her person or character that she may sue to recover damages therefor, although her husband is proper or even necessary party in order to render judgment res adjudicata against both members of marital community. Muir v. Pocatello, 36 Idaho 532, 212 P. 345 (1922) (decision prior to 1974 amendment).

Wife suing as administratrix of her husband may recover money belonging to community and paid out by husband, without making herself party plaintiff in her individual capacity. McGrath v. West End Orchard & Land Co., 43 Idaho 255, 251 P. 623 (1926). This statute makes it plain that the community can not be sued, nor can judgment be rendered against it without the husband being made a party to the suit. A judgment against the wife in her sole, separate and individual capacity, is not a lien against the community. First Nat’l Bank v. Samuels, 53 Idaho 780, 27 P.2d 959 (1933) (decision prior to 1974 amendment).

A wife who was injured in an accident involving a company car operated by her husband was entitled to pursue her cause of action for negligent personal injury against the husband and to recover damages as separate property. Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975).

Agency of Spouse.

The husband may constitute his wife as his agent, and render binding her acts within the scope of her apparent authority, and an agency need not be established by the production of a contract or other direct proof, but it may be inferred from all the facts and circumstances in evidence, including the conduct of the parties, and, usually, it is a question for the jury. Carron v. Guido, 54 Idaho 494, 33 P.2d 345 (1934) (decision prior to 1974 amendment).

This section usually requires two signatures with regard to transactions involving community real estate, however, an exception to this general rule exists if one spouse is authorized to act as an agent for the management and disposition of community real property, and such an agency may be created by an express power of attorney, or may be inferred from the circumstances and conduct of the parties. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

Annuity Contract.

An annuity contract signed by a husband was a community obligation. Stanger v. Stanger, 98 Idaho 725, 571 P.2d 1126 (1977).

Bankruptcy.

In a joint Chapter 7 bankruptcy petition where the husband and wife debtors divorced prior to the closing of administration, under 11 U.S.C.S. § 726(c), the wife’s separate property was liable for payment of allowed administrative claims, any allowed community claims, and for payment of any allowed claims flowing from her separate debts; however, 11 U.S.C.S. § 726(c) did not allow a distribution of the wife’s separate property to holders of claims that were enforceable only against the husband’s separate property. In re Hicks, 300 B.R. 372 (Bankr. D. Idaho 2003).

Debtor’s motion seeking turnover of prorated portion of her federal tax refund was denied. Because the refund was community property subject to equal management by either spouse, all of the prorated tax refund constituted property of the debtor’s bankruptcy estate and was available to satisfy creditors’ claims incurred by the debtor before her marriage. In re Martell, 349 B.R. 233 (Bankr. D. Idaho 2005).

Chapter 7 debtor who claimed a homestead exemption in real property she owned in Idaho was entitled to avoid a judgment lien a creditor placed on the property six months before the debtor and her husband were divorced and her husband transferred his interest to the debtor. The creditor obtained a judgment against the debtor’s former husband after he failed to repay a debt,§ 32-903 created a presumption that the property was community property at the time the creditor filed its lien, the lien attached to the debtor’s community property interest, and the lien impaired the debtor’s homestead exemption. In re Ashcraft, 415 B.R. 428 (Bankr. D. Idaho 2008). Because a debtor and his wife purchased a vehicle during their marriage, it was presumed to be community property under§ 32-906, and they did not rebut this presumption by testifying that the vehicle was purchased with funds from the wife’s separate bank account. A Chapter 7 trustee could avoid a transfer of the vehicle from debtor to his wife, as constructively fraudulent under 11 U.S.C.S. § 548(a)(1)(B) and§§ 55-913(1)(b) and 55-914(1), as the transfer occurred within the applicable reach back period, the debtor was insolvent at the time, and he transferred the vehicle for less than reasonably equivalent value. Rainsdon v. Kirtland (In re Kirtland), 2011 Bankr. LEXIS 3828 (Bankr. D. Idaho Sept. 30, 2011).

Community Expenditure on Separate Property.

Where there was no evidence to show that husband fraudulently or unfairly applied community funds toward his separate purposes, and there was evidence that wife acquiesced to the application of the funds to husband’s separate obligations, the reimbursed funds did not become due until the court determined that wife was entitled to those funds. Swanson v. Swanson, 134 Idaho 512, 5 P.3d 973 (2000).

Control Pending Divorce.

Under the statute authorizing the judge to make all necessary orders for the custody of property during the pendency of a divorce action, the district court had jurisdiction to make an order authorizing the wife suing for divorce to remain in the custody and exclusive control of, and continue the management over, community hotel property until a final termination of the case. Benson v. District Court, 62 P.2d 108 (1936).

Dissenting Shareholders’ Rights.

Either spouse is entitled to assert dissenting shareholders’ rights on behalf of the other, at least so long as the corporation does not have reason to know that the nonsigning spouse objects; similarly, the representations of one spouse regarding the exercise of shareholders’ rights should be binding on the other spouse. Waters v. Double L, Inc., 114 Idaho 256, 755 P.2d 1294 (Ct. App. 1987), aff’d, 115 Idaho 705, 769 P.2d 582 (1989).

Estoppel.

In action for foreclosure of mortgage, the government was not entitled to an equitable lien or mortgage upon property under doctrine of equitable estoppel, without deception or negligence on part of wife, where mortgage on community real property had been executed by husband but not by wife in exchange for a home improvement loan, through farmers home administration. United States v. McConkey, 430 F.2d 652 (9th Cir. 1970).

Statute is for protection of community property and defendant enjoying benefit of contract will not be heard to claim contract is void for noncompliance with statutory provisions. Karlson v. Hanson & Karlson Sawmill Co., 10 Idaho 361, 78 P. 1080 (1904); Farrar v. Parrish, 42 Idaho 451, 245 P. 934 (1926); Quayle v. Stone, 43 Idaho 306, 251 P. 630 (1926).

Where husband is almost continuously absent, and wife carries on business with her own funds and remittances occasionally received by him, and in such business acquires property which she mortgages, she can not say as against her creditors that such property is community property. Sassaman v. Root, 37 Idaho 588, 218 P. 374 (1923).

Where husband and wife sign mortgage and they or their agent cause or permit a false acknowledgment to be placed upon it, and one not a party to procuring the false certificate and without notice of its false procurement, for a fair consideration, takes instrument relying upon its verity, makers are estopped from disputing its verity. Kansas City Life Ins. Co. v. Harroun, 44 Idaho 643, 258 P. 929 (1927). In order to constitute an estoppel, there must have been a false representation or concealment of a material fact, made with knowledge, actual or constructive, of the falsity thereof, and the party to whom the same was made must have been without knowledge or means of acquiring knowledge of the real facts, and the false representation must have been made with intent that it should be acted upon, and was acted upon to the prejudice of the party deceived, but estoppel does not ordinarily operate to prevent a husband and wife from repudiating conveyance not executed as required by this section. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

Where plaintiff performed his part of a contract requiring conveyance to the husband and wife of an apartment building, in exchange for an equity in farm lands, the husband and wife could not rely on their failure to have their signatures to the contract acknowledged to escape liability for their failure to convey their equity in the farm lands, notwithstanding the provisions of this section. Finlayson v. Waller, 64 Idaho 618, 134 P.2d 1069 (1943).

Where wife does not sign a bill of sale she is not estopped to deny validity of instrument where she makes no false representations although there is evidence that she knew of the alleged sale. Fairchild v. Wiggins, 85 Idaho 402, 380 P.2d 6 (1963).

Where conversation relating to the sale of timber on community real estate was held in the home during the dinner hour, the wife being present during portions of the conversation and hearing the discussion and being with her husband and prospective purchaser at dinner and the next day the husband signed a bill of sale which wife did not sign, there was no proof of any affirmative action on the part of the wife, no proof of false representation or concealment of material fact, and no proof of any material improvement on the real property such as would estop the wife from denying the validity of the bill of sale. Fairchild v. Wiggins, 85 Idaho 402, 380 P.2d 6 (1963).

Where evidence disclosed that the wife was either actually aware of contract to convey the property or actually participated and benefitted from the contract during its duration she was properly estopped to invoke the statute. Brown v. Burnside, 94 Idaho 363, 487 P.2d 957 (1971).

It is clear that this section is subject to the rules of equitable estoppel. Calvin v. Salmon River Sheep Ranch, 104 Idaho 301, 658 P.2d 972 (1983).

Where the evidence indicated that the two wives of the defendant landowners were present at several of the negotiating sessions which culminated in an agreement with the plaintiff logging company, in which the plaintiff agreed to pay the landowners for the right to cut and sell the timber from the defendants’ land, and the wives knew that the plaintiff was logging their property and that payments for their timber were received over the course of nine months, there was sufficient evidence for a reasonable jury to conclude that the wives were estopped to invoke the protections of this section, even though they had not signed the logging agreement nor actively participated in its negotiation. Calvin v. Salmon River Sheep Ranch, 104 Idaho 301, 658 P.2d 972 (1983).

Frivolous Appeal.

In General.

Appeal was brought frivolously and without foundation where appeal presented no meaningful issue on a question of law in a dispute between the wife and son of decedent, over the ownership of a community property beekeeping business. Mundell v. Stellmon, 121 Idaho 413, 825 P.2d 510 (Ct. App. 1992). In General.

Inasmuch as this section but codifies an already existing common-law procedure for managing the community property, under which the express power of attorney sanctioned by this section was but one method by which the wife might be constituted her husband’s agent for purposes of dealing with the community property, the doctrine of expressio unius est exclusio alterius does not apply. Noble v. Glenns Ferry Bank, Ltd., 91 Idaho 364, 421 P.2d 444 (1966) (decision prior to 1974 amendment).

Under the community property system in this state and this section, which has established a rule of co-equal management of community assets or property, when either member of the community incurs a debt for the benefit of the community, the property held by the marital community becomes liable for such a debt and the creditor may seek satisfaction of his unpaid debt from such property. Twin Falls Bank & Trust Co. v. Holley, 111 Idaho 349, 723 P.2d 893 (1986).

There is no such entity as a community debtor. To the extent a lending institution enters into a creditor-debtor relationship with either member of the marital community or with both members, it does so on a purely individual basis; thus, the lending institution may have a creditor-debtor relationship with either spouse separately or with both jointly. Twin Falls Bank & Trust Co. v. Holley, 111 Idaho 349, 723 P.2d 893 (1986).

This section evinces a legislative policy of protecting community real property from creditors, unless both spouses agree in writing to incur the debt. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

Sellers were not estopped from avoiding the oral contract with the buyers under§ 32-912 where the seller’s wife was not a party to any agreement between her husband and the buyers, and there was no contrary evidence to her testimony that the wife was unaware of and did not consent to the buyers’ improvements to the property; further, the knowledge that the husband had could not be imputed to the wife by the sole fact of marriage where nothing tied the wife to any agreement the husband made. Lovelass v. Sword, 140 Idaho 105, 90 P.3d 330 (2004).

Joint Execution and Acknowledgment.

Husband can not dispose of community real estate unless wife joins with him in the conveyance, whether or not property is impressed with homestead declaration or used or occupied as home. Wits-Keets-Poo v. Rowton, 28 Idaho 193, 152 P. 1064 (1915).

Execution by wife is necessary to contract to convey community property. Childs v. Reed, 34 Idaho 450, 202 P. 685 (1921); McKinney v. Merritt, 35 Idaho 600, 208 P. 244 (1922); Hart v. Turner, 39 Idaho 50, 226 P. 282 (1924); Elliott v. Craig, 45 Idaho 15, 260 P. 433 (1927).

In this state, acknowledgment by wife is necessary to validity of any instrument whereby community property is sold, conveyed, or encumbered. Childs v. Reed, 34 Idaho 450, 202 P. 685 (1921); McKinney v. Merritt, 35 Idaho 600, 208 P. 244 (1922).

Element of mutuality in contract to convey community property must arise from inception of contract without reference to subsequent ability or willingness of one of the parties to perform. Childs v. Reed, 34 Idaho 450, 202 P. 685 (1921); Elliott v. Craig, 45 Idaho 15, 260 P. 433 (1927).

Husband can not encumber community real estate unless wife joins with him in executing and acknowledging instrument. Weiser Loan & Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515 (1925). Husband can not encumber or convey community real property without wife joining and acknowledging instrument of conveyance of encumbrance. Blaine County Nat’l Bank v. Timmerman, 42 Idaho 338, 245 P. 389 (1926).

A contract to convey community real property which is not signed and acknowledged by both husband and wife is unenforceable against strangers to the community, for want of mutuality, and the requisite mutuality must exist at the inception of the contract. Thomas v. Stevens, 69 Idaho 100, 203 P.2d 597 (1949).

A contract to convey community property which was not signed and acknowledged by both husband and wife could not be revived and given validity by the signing and acknowledgment thereof, by the wife, nearly five years after its inception. Thomas v. Stevens, 69 Idaho 100, 203 P.2d 597 (1949).

It is settled law that every instrument affecting the title to real property is subject exclusively to the laws of the state within whose jurisdiction the real property is situated; therefore, in view of the Idaho rule requiring every contract affecting community property to be signed and acknowledged by both husband and wife, contract to sell community property not signed by wife was void. Fuchs v. Lloyd, 80 Idaho 114, 326 P.2d 381 (1958).

A conveyance of community real estate in which the wife does not join by executing and acknowledging the instrument is void ab initio and unenforceable. Reimann v. United States, 196 F. Supp. 134 (D. Idaho 1961), aff’d, 315 F.2d 746 (9th Cir. 1963).

Instruments conveying community realty, even when signed by both husband and wife, are ineffective unless acknowledged by husband and wife. Furness v. Park, 98 Idaho 617, 570 P.2d 854 (1977).

The logic and policy underlying this section require that both spouses 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. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

The failure of a spouse to join in any conveyance renders the conveyance void. Keller v. Rogstad, 112 Idaho 484, 733 P.2d 705 (1987).

Community real property can be validly encumbered only if both spouses join in executing the instrument of encumbrance. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

— Acquisition of Property.

The husband, as manager of or agent for, the community, can purchase, with community funds, real property which is subject to liens, reservations and exceptions, but after the community once acquires title, he can not convey or encumber the community property without the wife joining with him in the execution and acknowledgment of the instrument of conveyance or incumbrance. Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976 (1948).

It is unnecessary for the wife to join with her husband in the execution of an instrument by which community real property is acquired. Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976 (1948).

— Brokerage Agreements.

A contractual agreement with a broker to find a buyer for community property need not have the approval of both husband and wife, since each spouse has the authority to separately manage and control the property so long as it is not an attempt to sell, convey, or encumber the property. C. Forsman Real Estate Co. v. Hatch, 97 Idaho 511, 547 P.2d 1116 (1976).

— Challenge to Acknowledgment.

Where a married woman admits the signing of a real estate mortgage but denies an acknowledgment thereof, such instrument will not be set aside upon her own uncorroborated testimony, and the evidence to overturn such an acknowledgment as a whole must be clear and convincing, the general rule being that a notary’s certificate will not be vacated upon the unsupported testimony of the party bound where such party in fact signed the instrument assailed. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925).

— Contract Severable.

Where a contract pertained to sale of merchandise at a stated price and lease of building constituting community realty as a stipulated rental, the latter portion of which was invalid for want of acknowledgment by wife of the lessor, but the contract did not prohibit the buyer from removing the merchandise from the premises, or require the buyer to carry on the business on the premises, the provisions were severable authorizing enforcement of provisions pertaining to sale. Durant v. Snyder, 65 Idaho 678, 151 P.2d 776 (1944).

— Insurance.

Where insured wife made a change of beneficiary from her husband to her daughter, without the consent and knowledge of her husband, thus attempting to make a gift of the proceeds of the policy to the daughter, since premiums had been paid with community funds, the change of beneficiary was voidable insofar as it applied to husband’s half interest. Anderson v. Idaho Mut. Benefit Ass’n, 77 Idaho 373, 292 P.2d 760 (1956).

— Leases.

A written lease of community property for a term of years is a conveyance and encumbrance within this section and is void unless wife joins in the execution and acknowledgment thereof. Fargo v. Bennett, 35 Idaho 359, 206 P. 692 (1922); Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704 (1939); Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939); Hancock v. Elkington, 67 Idaho 542, 186 P.2d 494 (1947).

While lease of community property must be jointly executed, and is void for failure in this regard, owner may recover for use and occupation of land, and void lease may be used to establish amount of rent to be paid. Quayle v. Stone, 43 Idaho 306, 251 P. 630 (1926).

Lease of community property not signed or acknowledged by wife was not valid where lessor had been in possession only a short time and sought to invoke harsh remedy of forfeiture, although wife had acquiesced in lease and had been ready, able, and willing to sign. Burnham v. Henderson, 47 Idaho 687, 278 P. 221 (1929).

A leasehold estate which belongs to the community can not be sold, encumbered or materially modified by the lessee without the written consent of his wife. Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704 (1939).

A lease of community real estate for a period not exceeding one year is not such an “encumbrance” as is required by the statute to be in writing, executed and acknowledged by both husband and wife. Abbl v. Morrison, 64 Idaho 489, 134 P.2d 94 (1943). A lease of community real property for more than one year, not acknowledged by husband and wife is not enforceable as such. Durant v. Snyder, 65 Idaho 678, 151 P.2d 776 (1944).

A lease for more than one year or a mortgage is such a conveyance or encumbrance that it falls within the prohibition that a husband acting as agent for the community can not execute same unless his wife joins with him in executing the instrument. Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976 (1948).

When husband, as agent for community, contracted that realty should immediately upon acquisition be subject to a lease in favor of vendor in order to acquire such realty from vendor, such contract was not void for the reason that it was not signed by the wife. Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976 (1948).

A leasehold in an estate is real property, hence contract to assign a lease signed only by husband is void, since contract to assign lease constitutes an encumbrance. Coppedge v. Leiser, 71 Idaho 248, 229 P.2d 977 (1951).

If contract to sell garage signed only by husband contains an agreement to transfer lease as well as for sale of inventory, and contract terms show intention of parties that premises are to be used for conduct of business, sale contract is void. Coppedge v. Leiser, 71 Idaho 248, 229 P.2d 977 (1951).

In action by buyers of corporate stock for breach of contract wherein wife failed to sign and to acknowledge lease agreement, the court held that a lease for years was an estate in real property and, with respect to community property, lease agreement was void and unenforceable by virtue of this section. Kays v. Brack, 350 F. Supp. 1243 (D. Idaho 1972).

— Manner of Acknowledgment.

Where a husband and wife signed a purported lease contemplating the leasing of community property for a term of years, but neither personally appeared before the acknowledging notary public, the latter could not take their acknowledgment of the lease by accepting or acting upon an affidavit of a third party stating that the third party personally knew the husband and wife, and was present and saw them execute the lease. Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939).

A husband who challenged the validity of an assignment of real property on the ground that the signatures of himself and his wife had not been acknowledged before a notary failed to sustain his burden in light of the presumption of truth favoring a signed acknowledgment which is complete and regular on its face, and, accordingly, a finding of proper acknowledgment would be upheld. Furness v. Park, 98 Idaho 617, 570 P.2d 854 (1977).

— Mortgages.

Acknowledgment of wife is necessary to mortgage of community property. Myers v. Eby, 33 Idaho 266, 193 P. 77 (1920); Knudsen v. Lythman, 33 Idaho 794, 200 P. 130 (1920); McKinney v. Merritt, 35 Idaho 600, 208 P. 244 (1922).

Mortgage of community property not signed by wife is void. Civils v. First Nat’l Bank, 41 Idaho 690, 241 P. 1023 (1925).

— Sale of Leased Land.

Since under this section an encumbrance of community property is void unless both the husband and wife join in the execution and their signatures are acknowledged, where wife did not join with husband in executing mortgage on community real property in exchange for a home improvement loan, through farmers home administration, the mortgage was invalid and not subject to foreclosure by the government, even though the couple had not lived together for more than ten years prior to the execution of the mortgage. United States v. McConkey, 430 F.2d 652 (9th Cir. 1970). — Sale of Leased Land.

Lease on community property could not be terminated by landlords, husband and wife, by notice based on an earnest money receipt and agreement signed by the husband only and accepted by the purchasers, as such did not constitute an enforceable sale within provision of the lease that the contract was subject to sale of the real estate. West v. Brenner, 88 Idaho 44, 396 P.2d 115 (1964).

— Sale of Timber.

A bill of sale for timber is an encumbrance upon community realty and is void without wife’s signature and acknowledgment. Fairchild v. Wiggins, 85 Idaho 402, 380 P.2d 6 (1963).

— Soil Bank Contracts.

Husband did not “encumber” community real estate by executing soil bank contract, and, since the execution of the contract was within the husband’s powers of “management and control,” expressly established under this section, the wife’s signature was not required. Reimann v. United States, 315 F.2d 746 (9th Cir. 1963) (Decision prior to 1974 amendment).

— Supplemental Contracts.

Supplemental contract extending time of payment called for by earlier contract did not involve sale, encumbrance, or transfer of community property, and did not require acknowledgment. Binder v. Blair, 48 Idaho 580, 283 P. 613 (1929).

This statute did not apply to agreement by husband alone reducing price of land sold on account of loss of buildings by fire where deeds signed by both spouses had been executed and placed in escrow. Williamson v. Wilson, 56 Idaho 198, 52 P.2d 138 (1935).

Liability.

— After Divorce.

A creditor may not proceed against community assets distributed to the nondebtor spouse pursuant to a divorce decree, except where the debtor spouse is responsible for a community obligation but is not awarded sufficient community assets to satisfy such a debt. Twin Falls Bank & Trust Co. v. Holley, 111 Idaho 349, 723 P.2d 893 (1986).

The bank was without any basis to sue the debtor’s ex-wife or otherwise execute on former community property now in her possession, where the bank took a security interest in the debtor’s property following the division of community property pursuant to a divorce decree. Twin Falls Bank & Trust Co. v. Holley, 111 Idaho 349, 723 P.2d 893 (1986).

— Separate Debts.

Community property can not be bound by postnuptial contracts of wife for the use and benefit of her own separate property. Hall v. Johns, 17 Idaho 224, 105 P. 71 (1909), overruled on other grounds, Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976). Community property is liable for separate debts of husband as well as community debts. Gustin v. Byam, 41 Idaho 538, 240 P. 600 (1925) (Decision prior to 1974 amendment).

Since only if a debt is incurred for the benefit of the community does this section allow satisfaction of the unpaid debt from the community property where complaint alleged neither personal liability nor that the debt was incurred for the benefit of the community and wife had not signed the note, court could not render judgment of foreclosure on mortgage securing a promissory note against wife of deceased defendant. First Idaho Corp. v. Davis, 867 F.2d 1241 (9th Cir. 1989).

Separate debts of either spouse may be paid from community property. The debt does not need to be incurred for the benefit of the community in order for the community to be liable. Credit Bureau of E. Idaho, Inc. v. Lecheminant, 149 Idaho 468, 235 P.3d 1188 (2010).

— Torts.

In action for libel, where it was alleged that acts of husband were committed while he was in business of community, for benefit and use of community, but there was no allegation of commission of tort by the wife, she was not liable under the allegations and should have been dismissed as a party defendant unless the complaint was amended. Browder v. Cook, 59 F. Supp. 225 (D. Idaho 1944).

Where defendant husband committed the battery complained of where while he was actively and actually engaged in the management of the community business, the operation of a bar, and what he did in using a tear gas gun on plaintiff was intended to be for the protection of community property and in the interest of the community business, the community was responsible for his tort. Hansen v. Blevins, 84 Idaho 49, 367 P.2d 758 (1962).

Medicaid Recovery.

Section 56-218 and federal law permit the department of health and welfare to recover medical payments, paid on behalf of now deceased wife, from deceased husband’s estate, based on assets that had once been wife’s community property, but had been transmuted into husband’s separate property for the purpose of making wife eligible for Medicaid. State v. Wiggins (In re Estate of Wiggins), 155 Idaho 116, 306 P.3d 201 (2013).

Mutual Mistake.

To reform a mortgage, executed by husband and wife on community property, on the ground of mutual mistake, it must appear that the mistake existed as to both spouses. Such mortgage can not be reformed unless the mistake is traceable to the wife as well as the husband. This rule accords with the doctrine announced in this section requiring both spouses to join in any encumbrance of the community estate. Metropolitan Life Ins. Co. v. McClelland, 57 Idaho 139, 63 P.2d 657 (1936).

Reformation of a conveyance of community property on the basis of mutual mistake is not proper unless both the husband-grantor and wife-grantor were mistaken. Collins v. Parkinson, 96 Idaho 294, 527 P.2d 1252 (1974).

Power to Encumber Community Property.

While contracts normally will not be set aside merely because one spouse lacks the knowledge that community assets have been encumbered, a contract ought not be enforced against an unsuspecting spouse where the creditor collusively prevents the unsuspecting spouse from learning that his or her spouse is pledging community property and dissipating the proceeds received therefrom, and that the party in collusion has extended loans way beyond the security, and entirely without the bounds of reason and good judgment. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 760 P.2d 19 (1988). Although community real property cannot be encumbered unless both spouses sign the deed of trust or other instrument of conveyance, where one spouse did not sign a note, however, she did sign the deed of trust therewith, and where she was aware of the contract terms when the property was encumbered, the note was not impaired by any defect in the encumbrance upon the real property; in any event, other spouse’s signature was enough to give force to the note. Pocatello R.R. Employees Fed. Credit Union v. Galloway, 117 Idaho 739, 791 P.2d 1318 (Ct. App. 1990).

Beehives were given to son by deceased father, per oral contract, as compensation for son’s work which benefited the community property beekeeping business; deceased father bound the community property business to a contract for the payment of wages and bonuses to decedent’s son and decedent’s wife’s consent to the terms of the contract was not legally required. Mundell v. Stellmon, 121 Idaho 413, 825 P.2d 510 (Ct. App. 1992).

Purpose.

This section was enacted for protection of community property and may not be invoked to obtain an advantage over the community. Mitchell v. Atwood, 55 Idaho 772, 47 P.2d 680 (1935).

The purpose of this section is to protect the community, and it is not intended to permit one who has substantially profited by a contract within the statute to defeat payments to which he has agreed. Finlayson v. Waller, 64 Idaho 618, 134 P.2d 1069 (1943).

A contract to convey community real estate which was not signed and acknowledged by both the husband and wife where both had fully performed was not void since this section was enacted for the purpose of protecting the community and cannot be invoked by a third party to gain advantage over the community. Tew v. Manwaring, 94 Idaho 50, 480 P.2d 896 (1971).

This section is only properly used as a shield by a non-signing spouse to protect an interest in community real property — not as a sword by a third party to defeat an earlier recorded encumbrance. The benefit of this section is only intended to flow to the non-signing spouse for the protection of his or her interest in community real property, and it is only the non-signing spouse who may ask a court to declare an attempted transfer void. New Phase Invs., LLC v. Jarvis, 153 Idaho 207, 280 P.3d 710 (2012).

Rights of Spouses.

Wife has equal interest and ownership with husband. Kohny v. Dunbar, 21 Idaho 258, 121 P.2d 544 (1912); McKinney v. Merritt, 35 Idaho 600, 208 P. 244 (1922).

No distinction is made between husband and wife as to the degree, quantity, nature, or extent of interest each has in community property. Ewald v. Hufton, 31 Idaho 373, 173 P. 247 (1918); Peterson v. Peterson, 35 Idaho 470, 207 P. 425 (1922).

Interest of wife in community property is so vested in her that husband cannot deprive her of it by voluntary alienation for mere purpose of divesting her claim. Gustin v. Byam, 41 Idaho 538, 240 P. 600 (1925).

A wife’s interest in community property is a present, vested interest, equal to that of the husband and is not a mere “expectancy.” Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940). The character of community property is fixed at the time of its acquisition and the wife’s interest vests at that time. Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976 (1948).

In this jurisdiction, the interest of the wife in community property is a present vested interest, equal in degree, nature and extent to that of the husband. Hansen v. Blevins, 84 Idaho 49, 367 P.2d 758 (1962).

Spouses have equal control over the entirety of their community property; they thus have the power to encumber more than their own half of the community, which power imposes the solemn duty of a fiduciary, and continues until the moment of the marriage’s termination. Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980).

Valid Acknowledgment.

Where plaintiff and her husband treated a deed of trust as valid, they accepted money from a bank based upon a note secured by the deed of trust, and plaintiff admitted that she signed the instrument, even if plaintiff’s signature was not properly acknowledged, her conduct was consistent with the existence of a valid encumbrance, and plaintiff cannot raise the lack of valid acknowledgment as a defense to an action on the note. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

Valid Community Obligations.

Obligations incurred by debtor husband in loans from his mother were valid community obligations since mother had a valid security interest in farm equipment for 1986 loan and 1990 loan; 1986 security agreement provided it would also cover future advances and there was an adequate accounting by the debtor as to the proceeds from the sale of the farm equipment; therefore, distribution to pay such loans was proper. In re Kido, 142 Bankr. 924 (Bankr. D. Idaho 1992).

Waiver of Protective Requirements.

A party can waive the protective requirements of this section and even if an instrument lacks an acknowledgment of a spouse’s signature, the spouse will be deemed to have waived the defect if his or her conduct is consistent with the existence and validity of the instrument. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

Wife’s Earnings.

Money earned by married woman as laborer in orchards and packing houses or in caring for pasture of her stepfather, all while living with her husband, was community property, of which she had the management and control. McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929) (decided under former§ 32-913).

Cited Hughes v. Latour Creek R.R., 30 Idaho 475, 166 P. 219 (1917); Holt v. Empey, 32 Idaho 106, 178 P. 703 (1919); Corbett v. Vette, 9 F.2d 773 (9th Cir. 1926); McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929); Swager v. Peterson, 49 Idaho 785, 291 P. 1049 (1930); Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954); Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956); Harvey v. Brown, 80 Idaho 379, 330 P.2d 982 (1958); Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965); Boesiger v. De Modena, 88 Idaho 337, 399 P.2d 635 (1965); Jones v. State, 91 Idaho 823, 432 P.2d 420 (1967); Anderson v. Burns, 96 Idaho 336, 528 P.2d 680 (1974); Bair v. Barron, 97 Idaho 26, 539 P.2d 578 (1975); Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976); Matheson v. Harris, 98 Idaho 758, 572 P.2d 861 (1977); Collins v. Parkinson, 98 Idaho 871, 574 P.2d 913 (1978).

Cited

Community Property as Collateral.

This section and§§ 32-903, 32-910, and 32-911 suggest that one spouse can obligate the community property of the marital estate and make that property available to a creditor desiring to execute on that property in the event of loan default, in the case of an unsecured loan incurred without the signature of the other spouse to the promissory note or loan obligation, Cases construing these statutes, however, attach significant qualifications to this conclusion.OAG 05-1.

Liability of Non-Obligated Spouse.

Absent collusion between the creditor and a spouse who is the sole signer on a promissory note, the non-obligated spouse’s signature on a deed of trust or mortgage should be sufficient to make the real property available to satisfy a secured loan in the event of default.OAG 05-1.

ALR.

Inclusion of funds in savings bank trust (totten trust) in determining surviving spouse’s interest in decedent’s estate. 64 A.L.R.3d 187.

Validity of postnuptial agreements in contemplation of divorce. 77 A.L.R.6th 293.

Validity of postnuptial agreements in contemplation of spouse’s death. 87 A.L.R.6th 495.

Compiler’s Notes.

This section, which comprised I.C.,§ 32-912A, as added by 1971, ch. 111, § 26, p. 233 was repealed by S.L. 1974, ch. 194, § 3.

Prior Laws.

Former§ 32-913, which comprised R.C., § 2686a, as added by 1915, ch. 75, § 2, p. 187; reen. C.L., § 2686a; C.S. § 4667; I.C.A.,§ 31-914, was repealed by S.L. 1974, ch. 194, § 4.

Compiler’s Notes.

This section, which comprised R.S., § 2507; reen. R.C. & C.L., § 2688; C.S., § 4669; I.C.A.,§ 31-916, was repealed by S.L. 1988, ch. 50, § 2.

Agreement to Change Rights.

A husband and wife may elect at any time to change their property rights, and this section authorizes transmutation of separate property to community property and vice versa which may take place at any time. Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

Ante-Nuptial Agreement.

Where the parties had a comprehensive ante-nuptial agreement which they entered into prior to the marriage, their property rights are determined by that agreement and not by this chapter. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Contract with Rights.

Parties to a divorce action have rights given to them by law, but they are at liberty to contract with respect to those rights. Vail v. Vail, 117 Idaho 520, 789 P.2d 208 (Ct. App. 1990).

Intent of Parties.

There is authority in Idaho for agreements transmuting property at the time of the execution of the agreement, and for agreements transmuting property at the death of one of the spouses; the intent of the parties should, if possible, be ascertained from the language contained in their contract, and, unless it contains absurdities or contradictions, the contract is the best evidence of the parties’ intent. Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

Where divorcing spouses entered into a stipulated divorce decree dividing equally community real estate, this action, without more, did not show that the property had been transmuted into separate interests prior to the husband filing for bankruptcy. Hopkins v. Idaho State Univ. Credit Union (In re Herter), 456 B.R. 455 (Bankr. D. Idaho 2011).

Statutory Formalities.

Although a husband and wife may elect at any time to change the character of their property from separate to community and vice versa, they may do so only in the manner provided or permitted by Idaho statutes, including§§ 32-917 — 32-919, by engaging in certain formalities. Consequently, in dividing property in a divorce proceeding, the magistrate acted properly when she refused to recognize an alleged oral or informal transmutation of a wife’s separate real property into community property during the marriage, where there was no evidence of compliance with any of the statutory formalities. Stockdale v. Stockdale, 102 Idaho 870, 643 P.2d 82 (Ct. App. 1982).

Agreements in Contemplation of Divorce.

Idaho appellate courts have repeatedly used the term “marriage settlements” to refer not only to prenuptial agreements, but also to agreements made with an eye towards separation and/or divorce, and because agreements made in contemplation of divorce are “marriage settlements,” they are subject to the requirement of this section that they be in writing and acknowledged. Stevens v. Stevens, 135 Idaho 224, 16 P.3d 900 (2000).

Construction.

A grantee’s mailing address is only necessary in a marriage settlement agreement when title to real property is being conveyed or modified. Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019).

Parties entering into a marriage settlement agreement must follow the general rules of contract law, including the requirement of consideration. Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019).

Illegal Contract.

Transfer of quitclaim deed to marital property from husband to wife was an illegal contract and thus unenforceable, where in exchange for the deed wife told husband she would not report to the police allegations that he had committed sexual improprieties with their daughter. Quiring v. Quiring, 130 Idaho 560, 944 P.2d 695 (1997).

Noncompliance with Statute.

Aside from stating that the community residence would be sold and any remaining money divided equally, the divorce decree did not address the division of the property; because the decree did not adjudicate any community personal property, the ex-husband’s retirement accounts were omitted assets and because any agreement regarding the division of the retirement accounts was not in writing, it was unenforceable by either party. Pike v. Pike, 139 Idaho 406, 80 P.3d 342 (Ct. App. 2003). Magistrate’s refusal to consider evidence of parties’ partial performance of their alleged oral prenuptial agreement to keep their property separate was affirmed. This section requires that all contracts for marriage settlements, including prenuptial agreements, must be in writing and executed and acknowledged or proved. Dunagan v. Dunagan, 147 Idaho 599, 213 P.3d 384 (2009).

Proving Transmutation.

Wife, having offered a document in an attempt to prove that its contents transmutted certain property from separate status to community property status, failed to sustain her burden of proving a transmutation and also failed to demonstrate that the formalities required in§§ 32-917 through 32-919 had been followed. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

In a divorce action, the magistrate’s finding that a 1998 quitclaim deed from the husband to himself and the wife did not transmute the husband’s home from separate to community property was supported by substantial competent evidence, because the husband signed the quitclaim deed simply because a lender presented it to him during a loan closing, he signed it along with many other papers the lender presented to him, he had no intent to transmute his property into community property, and he alone signed the promissory note for the new loan. Hoskinson v. Hoskinson, 139 Idaho 448, 80 P.3d 1049 (2003).

Proving Transmutation.

Wife, having offered a document in an attempt to prove that its contents transmutted certain property from separate status to community property status, failed to sustain her burden of proving a transmutation, and also failed to demonstrate that the formalities required in§§ 32-917 through 32-919 had been followed. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Cross References.

Effect of record of conveyance,§ 55-811.

Proving Transmutation.

Wife, having offered a document in an attempt to prove that its contents transmutted certain property from separate status to community property status, failed to sustain her burden of proving a transmutation, and also failed to demonstrate that the formalities required in§§ 32-917 through 32-919 had been followed. Wolford v. Wolford, 117 Idaho 61, 785 P.2d 625 (1990).

Prior Laws.

Former§ 32-921, which comprised I.C.,§ 32-921 as added by S.L. 1970, ch. 93, § 1, was repealed by S.L. 1971, ch. 111, § 7, effective July 1, 1972.

Compiler’s Notes.

The term “this act” refers to S.L. 1995, Chapter 229, which is compiled as 32-916, 32-921 to 32-929.

Acknowledgement.

Following§§ 32-921 — 32-929, the Uniform Premarital Agreement Act, appear “Comments” which are the comments prepared by the National Conference of Commissioners on Uniform State Laws. These comments were copyrighted by the National Conference of Commissioners on Uniform State Laws and reprinted with their permission.

In some instances the subsection, subdivision and etc. designations in the Idaho version of a section of the Uniform Premarital Agreement Act are different than those of the official version. For instance§ 32-923, Idaho Code contains subsections (1) and (2) with subsection (1) containing subdivisions (a) through (h). The official version of this section contains subsections (a) and (b) with subsection (a) containing subdivisions (1) through (8). Therefore a reference in the official comments to subsection (a)(1) and (2) would be a reference to subsections (1)(a) and (b) in the Idaho version. Idaho did not adopt §§ 11 to 13 of the official act.

Compiler’s Notes.

This section combines both sections 4 and 5 of the uniform act.

Compiler’s Notes.

The term “this act” near the beginning and end of this section refers to S.L. 1995, Chapter 229, which is compiled as§§ 32-916, and 32-921 to 32-929.

Compiler’s Notes.

The term “this act” at the beginning of this section refers to S.L. 1995, Chapter 229, which is compiled as§§ 32-916 and 32-921 to 32-929.

Cross References.

Domestic violence project grants,§§ 39-5201 to 39-5213.

New birth certificate when child legitimated by marriage of parents,§ 39-259.

Termination of parent and child relationship,§ 16-2001 et seq.

Wage assignment by parents, court order for,§ 8-704.

Cross References.

Desertion and nonsupport of wife and children,§ 18-401 et seq.

Action by Third Party.

There is no reason to bar a third party from bringing an action to recover the reasonable value of necessaries supplied in good faith to a child born out of wedlock against a person later adjudged to be liable for the support of the child in a paternity action. Isaacson v. Obendorf, 99 Idaho 304, 581 P.2d 350 (1978).

Custody Decree.

A decree granting custody of children to a third person does not relieve the parents of their obligation of support. Stafford v. Field, 70 Idaho 331, 218 P.2d 338 (1950).

Obligation of Father.

It is the obligation of the father to support his minor child. In re Wilson’s Guardianship, 68 Idaho 486, 199 P.2d 261 (1948).

An order in a divorce action for the husband to pay the expenses of a child born to the parties subsequent to their separation direct to the creditors instead of to the wife was for the husband’s protection, as such creditors, under this section, could proceed against him directly to recover such sums. Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).

Parents Equally Liable.

Mother, as well as father, is liable for the support of their minor child, and if they neglect to provide articles necessary for its support, according to their circumstances, they or either of them may be compelled to do so. State v. Beslin, 19 Idaho 185, 112 P. 1053 (1911).

Parent’s Liability Not Limited.

Section 32-1002 [repealed] and this section clearly do not limit a parent’s duty of support by equating it with the child’s eligibility for public assistance under the statutes and regulations governing the welfare system. State, Dep’t of Health & Welfare ex rel. Bowler v. Bowler, 116 Idaho 940, 782 P.2d 63 (Ct. App. 1989).

Recovery of Medical Expenses.

Where parents did not object to child’s action for recovery of medical expenses, but rather, filed a ratification and testified on the child’s behalf, these acts constituted a waiver by the parents of their right of recovery. Lasselle v. Special Prods. Co., 106 Idaho 170, 677 P.2d 483 (1983).

Support.

Right of minor child to support by father is not limited or abridged by the fact that father and mother are disputing the custody. Richardson v. Richardson, 72 Idaho 19, 236 P.2d 718 (1951).

Where minor child was living with paternal grandparents during absence of father in service, and mother who had remarried was able to furnish child with a comfortable home, decree was modified by awarding custody to mother with provision that father be required to pay a reasonable sum for support and maintenance of the child. Richardson v. Richardson, 72 Idaho 19, 236 P.2d 718 (1951).

Willfulness.

The statutes providing for parental reimbursement of assistance to a child do not contain the term “wilfully.” That word comes from a criminal statute,§ 18-401, which authorizes imposition of criminal penalties in certain cases of nonsupport. It may be that the state is put to more rigorous elements of proof if it seeks criminal penalties, but no such penalties are at issue here. “Willfulness” is not a required element of proof in a civil reimbursement case. State, Dep’t of Health & Welfare ex rel. Bowler v. Bowler, 116 Idaho 940, 782 P.2d 63 (Ct. App. 1989).

Disposition of Son’s Wages.

Where debtor agrees with his creditor that the services and earnings of his infant son may be retained by creditor in part payment of the indebtedness, he can not, by emancipating his son or donating to him his earnings, avoid payment of such indebtedness and thereby give son right to recover for such services. Tuckey v. Lovell, 8 Idaho 731, 71 P. 122 (1902).

Cross References.

Child custody jurisdiction and enforcement act,§ 32-11-101 et seq.

Award of Custody.

Upon the entry of a separate maintenance decree to the wife for the fault of the husband, the court properly awarded the custody of the children to the mother. Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940).

Upon application of a husband or wife, living in a state of separation without being divorced, a district court may inquire into the custody of any unmarried child to the marriage and award its custody to either parent, being guided by the welfare of the child. Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955 (1940).

In case of doubt, custody of a child of tender age or a girl will be awarded to the mother. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Mother will not be deprived of custody of a child unless the proof clearly shows that she is an unfit person for custody of the child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Superior right of mother to custody of child can not be defeated merely on the argument that father has a superior economic position. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Discretion of Court.

Court in exercising its discretion in awarding custody of children will consider as a paramount factor the welfare and best interest of the child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Duty to Support.

Father has duty to provide for child, hence failure to fulfill duty will be weighed against him in determining custody of child. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Jurisdiction.

District courts have jurisdiction to provide for custody of children in event of separation or divorce of parents. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951).

Separate Property.

District court had jurisdiction to determine custody of minor child whose parents had been divorced in a county other than that in which complaint for custody had been filed, where plaintiff was a resident of the state and personal service had been obtained against defendant within jurisdiction of court, since statutes governing custody of children had not limited original jurisdiction of district court in cases both at law and equity granted byIdaho Const., Art. V, § 20. Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266 (1951). Separate Property.

Where necessary in order to provide support and education for the children, the court may resort to the separate property of the husband and of the wife for that purpose. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

ALR.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — General Principles, Jurisdictional Issues, and General Issues Related to “Best Interests of Child”. 99 A.L.R.6th 203.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — Conduct or Condition of Parents; Evidentiary Issues. 100 A.L.R.6th 1.

Comment Note: In Camera Examination or Interview of Child in Custody Proceedings. 9 A.L.R.7th 6.

Cross References.

Severance of parent and child relationship,§ 16-2001 et seq.

Appointment of Coguardians.

The magistrate’s order appointing the grandparents coguardians of two minor children was a binding adjudication that the best interests of the minor children would be served by the requested appointment. Revello v. Revello, 100 Idaho 829, 606 P.2d 933 (1979).

Burden of Proving Right to Custody.

In habeas corpus proceeding to obtain custody of child from maternal grandparents, burden is on latter to prove father’s forfeiture of right to custody by abandonment of children or that he is unsuitable. Schiller v. Douglas, 48 Idaho 803, 285 P. 1021 (1930).

Person seeking custody of child from natural parent has the burden of proving abandonment or a forfeiture of parent’s statutory right to custody or that the parent is unfit or unable to properly care for the child. Freund v. English, 83 Idaho 140, 358 P.2d 1038 (1961).

Child’s Interest Controlling.

A father, seeking custody of his minor son by writ of habeas corpus from the maternal grandparents after the death of the mother, sustained his burden of proof by showing that he was the natural father of the child and the burden was then upon the defendants to prove that he was unfit or unable to properly care for the child or that he had forfeited his right by abandonment. Blankenship v. Brookshier, 91 Idaho 317, 420 P.2d 800 (1966). Child’s Interest Controlling.

Where legal right of parent to custody of child is not clear, the best interests of the child will govern court. Andrino v. Yates, 12 Idaho 618, 87 P. 787 (1906).

Where custody of a twelve-year-old girl is in dispute, court may consult wishes of child to aid in determining what will be for the best interest of child. Andrino v. Yates, 12 Idaho 618, 87 P. 787 (1906).

In a proceeding to determine custody of a child between parent and third party, the court should consider the following factors: (1) interest of the parents, (2) interest of third party caring for the child, and (3) interest of the child. In re Altmiller, 76 Idaho 521, 285 P.2d 1064 (1955).

In a proceeding of habeas corpus filed by father to obtain custody of child who was in the home of the grandmother, a determination in favor of the father based on ground that he was a fit person to take care of his child even though he had not supported child for five years due to sickness and insufficient funds, was set aside by the supreme court on the ground that father was not in a position to adequately care for the child, whereas the grandmother had given the child a comfortable home to which the child was much attached. In re Altmiller, 76 Idaho 521, 285 P.2d 1064 (1955).

While a parent has a natural right to the care, custody, and control of his child, the child’s welfare controls the parent’s statutory right to custody. Freund v. English, 83 Idaho 140, 358 P.2d 1038 (1961).

After the husband pleaded guilty to domestic battery, his wife left Idaho and fled to Oregon with their minor child. Magistrate court abused its discretion by ordering the wife to return with their child to Boise or surrender child custody. It was error for the magistrate court to fail to make findings on the wife’s argument that the husband’s habitual domestic violence overcame the presumption that joint custody was in the child’s best interest. Schultz v. Schultz, 145 Idaho 859, 187 P.3d 1234 (2008).

Exclusive Set of Conditions for Award.

This section does not establish an exclusive set of conditions for awarding one parent sole physical custody. Danti v. Danti, 146 Idaho 929, 204 P.3d 1140 (2009).

Father’s Custody Not Exclusive.

Father has no absolute right to deprive mother of the care and custody of infant child simply because he is the father. State v. Beslin, 19 Idaho 185, 112 P. 1053 (1911).

Illegal Actions of Parent.

Trial court erred in disregarding the presumption for joint custody and determining that mother’s greater relationship with child indicated that giving her sole legal and physical custody would be in the child’s best interests, where her greater relationship was primarily due to her illegal actions of absconding with the child to another state and obtaining a false domestic violence protection order there. Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007).

Loss of Right.

Legal right to the custody of minor may be abandoned or forfeited by the acts or conduct of parent, and, in such case, parent may be equitably estopped from asserting such legal right. Andrino v. Yates, 12 Idaho 618, 87 P. 787 (1906).

In view of this and other provisions of the statutes regarding the custody of children upon the divorce of their parents, the custody should be awarded to one or both of the parents, or, if they are unfit or unable to accept such custody, to a third person, after the court has received evidence as to his qualifications. Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (1919).

A father who, after a divorce in which custody of his children was given to his wife and after the wife’s remarriage and removal to the state of Connecticut, failed to make substantial contribution to their support, to visit them, or to make sufficient inquiry to learn of their whereabouts was not entitled to their custody as against their step-father after the death of their mother. Clark v. Jelinek, 90 Idaho 592, 414 P.2d 892 (1966).

Parent’s Right to Custody of Child.

If the parent is competent to transact his or her own business and is not otherwise unsuitable, the custody of the child is not to be given to another, even though such other may be a more suitable person. Spaulding v. Children’s Home Finding & Aid Soc’y, 89 Idaho 10, 402 P.2d 52 (1965).

In normal situations, the natural parents are entitled to custody of the child, unless it is affirmatively shown that the parent has abandoned the child or that he is unsuitable. Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972).

Right to Fix Domicil.

The father may fix the domicil of the children. Duryea v. Duryea, 46 Idaho 512, 269 P. 987 (1928).

Compiler’s Notes.

This section, which comprised I.C.,§ 32-1008, as added by 1972, ch. 125, § 1, p. 249, was repealed by S.L. 1994, ch. 407, § 2, effective July 1, 1994.

Compiler’s Notes.

The term “this act” in subsection (6) refers to S.L. 2015, Chapter 219, which is codified as§§ 32-1010 to 32-1013.

Section 5 of S.L. 2015, ch. 219 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Compiler’s Notes.

Section 5 of S.L. 2015, ch. 219 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Compiler’s Notes.

Section 5 of S.L. 2015, ch. 219 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Compiler’s Notes.

The term “this act” in subsections (1), (3), and (4) refers to S.L. 2015, Chapter 219, which is codified as§§ 32-1010 to 32-1013.

Section 5 of S.L. 2015, ch. 219 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

ALR.

__________

STATUTORY NOTES

Compiler’s Notes.

The following sections in former Title 32, Chapter 11, were repealed by S.L. 2000, ch. 227, § 1, effective July 1, 2000:

32-1101, which comprised I.C.,§ 5-1001, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1102, which comprised I.C.,§ 5-1002, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1103, which comprised I.C.,§ 5-1003, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1104, which comprised I.C.,§ 5-1004, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1105, which comprised I.C.,§ 5-1005, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1106, which comprised I.C.,§ 5-1006, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1107, which comprised I.C.,§ 5-1007, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1108, which comprised I.C.,§ 5-1008, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1109, which comprised I.C.,§ 5-1009, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1110, which comprised I.C.,§ 5-1010, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1111, which comprised I.C.,§ 5-1011, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1112, which comprised I.C.,§ 5-1012, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1113, which comprised I.C.,§ 5-1013, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776. 32-1114, which comprised I.C.,§ 5-1014, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1115, which comprised I.C.,§ 5-1014A, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1116, which comprised I.C.,§ 5-1015, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1117, which comprised I.C.,§ 5-1016, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1118, which comprised I.C.,§ 5-1017, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1119, which comprised I.C.,§ 5-1018, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1120, which comprised I.C.,§ 5-1019, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1121, which comprised I.C.,§ 5-1020, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1122, which comprised I.C.,§ 5-1021, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1123, which comprised I.C.,§ 5-1022, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1124, which comprised I.C.,§ 5-1023, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1125, which comprised I.C.,§ 5-1024, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

32-1126, which comprised I.C.,§ 5-1025, as added by 1977, ch. 214, § 1, p. 618; am. and redesig. 1982, ch. 311, § 4, p. 776.

__________

ALR.

Child’s wishes as factor and awarding custody. 4 A.L.R.3d 1396.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child. 7 A.L.R.3d 1096.

Divorce: Award of custody of child to parent against whom divorce is decreed. 23 A.L.R.3d 6.

Award of custody of child where contest is between child’s father and grandparent. 25 A.L.R.3d 7.

Award of custody of child where contest is between child’s mother and grandparent. 29 A.L.R.3d 366.

Award of custody of child where contest is between child’s grandparent and one other than the child’s parent. 30 A.L.R.3d 290.

Award of custody of child where contest is between child’s parents and grandparents. 31 A.L.R.3d 1187.

Necessity of notice of application for temporary custody of child. 31 A.L.R.3d 1378.

Foreign award: Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances. 35 A.L.R.3d 520.

Right of putative father to custody of illegitimate child. 45 A.L.R.3d 216.

Physical abuse of child by parent as ground for termination of parent’s right to child. 53 A.L.R.3d 605.

Sexual abuse of child by parent as ground for termination of parent’s right to child. 58 A.L.R.3d 1074.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision. 59 A.L.R.3d 1337.

Who has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control. 75 A.L.R.3d 933.

Parent’s involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding. 79 A.L.R.3d 417. Race as factor in custody award or proceedings. 10 A.L.R.4th 796.

Religion as factor in child custody and visitation cases. 22 A.L.R.4th 971.

Child custody: Separating children by custody awards to different parents — post-1975 cases. 67 A.L.R.4th 354.

What types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA). 78 A.L.R.4th 1028.

Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(c)(2)(B). 5 A.L.R.5th 550.

Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(c)(2)(C). 5 A.L.R.5th 788.

Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(c)(2)(A). 6 A.L.R.5th 1.

Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(c)(2)(D). 6 A.L.R.5th 69.

Construction and operation of Uniform Child Custody Jurisdiction and Enforcement Act. 100 A.L.R.5th 1.

ALR.

§ 32-11-103. Proceedings governed by other law.

This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

History.

I.C.,§ 32-11-103, as added by 2000, ch. 227, § 2, p. 623.

ALR.

ALR. — Construction and application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) upon child custody determinations. 89 A.L.R.5th 195.

Construction and application by state courts of Indian Child Welfare Act of 1978 requirement of active efforts to provide remedial services, 25 U.S.C.A. § 1912(d). 61 A.L.R.6th 521.

Validity, construction, and application of placement preferences of state and federal Indian Child Welfare acts. 63 A.L.R.6th 429.

ALR.

ALR. — Applicability and application of Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to international child custody and support actions. 66 A.L.R.6th 269.

Personal Jurisdiction.

A magistrate court did not have personal jurisdiction over a father, to enter an order establishing a sum owed to the mother under his military pension, because, while the father registered the parties’ Colorado divorce decree with the Idaho courts, he had never lived in Idaho and his only contacts with Idaho were related to child custody and child support proceedings. Wilson v. King, 160 Idaho 344, 372 P.3d 399 (2016).

Decisions Under Prior Law

When Applicable.

Where original divorce decree entered by an Idaho court awarded joint custody of child to parties and mother filed motion in Florida court requesting that she be awarded custody and father filed motion in Idaho court requesting custody and Idaho magistrate did not decline jurisdiction, since Idaho had continuing jurisdiction, the Florida court should have communicated with the Idaho magistrate, determined that the Idaho magistrate was going to exercise Idaho’s continuing jurisdiction, and deferred to the decision of the Idaho magistrate pursuant to the mandate of former§ 32-114 and Florida law. Ladurini v. Hazzard, 130 Idaho 192, 938 P.2d 1230 (1997).

Idaho Law Review.

Idaho Law Review. — Choice of Law in Idaho: A Survey and Critique of Idaho Cases, Andrew S. Jorgensen. 49 Idaho L. Rev. 547 (2013).

ALR.

Construction and application of uniform child custody jurisdiction and enforcement act’s home state jurisdiction provision. 57 A.L.R.6th 163.

Construction and application of uniform child custody jurisdiction and enforcement act’s exclusive, continuing jurisdiction provision — No significant connection/substantial evidence. 59 A.L.R.6th 161.

Construction and application of uniform child custody jurisdiction and enforcement act’s exclusive, continuing jurisdiction provision — Other than no significant connection/substantial evidence. 60 A.L.R.6th 193.

ALR.

Construction and application of uniform child custody jurisdiction and enforcement act’s exclusive, continuing jurisdiction provision — No significant connection/substantial evidence. 59 A.L.R.6th 161.

Construction and application of uniform child custody jurisdiction and enforcement act’s exclusive, continuing jurisdiction provision — Other than no significant connection/substantial evidence. 60 A.L.R.6th 193.

ALR.

§ 32-11-204. Temporary emergency jurisdiction.

1. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
2. If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
3. If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 32-11-201 through 32-11-203, Idaho Code. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
4. A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 32-11-201 through 32-11-203, Idaho Code, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to sections 32-11-201 through 32-11-203, Idaho Code, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

History.

I.C.,§ 32-11-204, as added by 2000, ch. 227, § 2, p. 623.

ALR.

ALR. — Emergency jurisdiction of court under §§ 3(a)(3)(ii) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§ 1738A(c)(2)(C)(ii) and 1738A(f), to protect interests of child notwithstanding existence of prior, valid custody decree rendered by another state. 80 A.L.R.5th 117. Appealability of interlocutory or pendente lite order for temporary child custody. 82 A.L.R.5th 389.

Construction and application of uniform child custody jurisdiction and enforcement act’s temporary emergency jurisdiction provision. 53 A.L.R.6th 419.

ALR.

§ 32-11-209. Information to be submitted to court.

1. In a child custody proceeding each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
   1. Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
   2. Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
   3. Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
2. If the information required by subsection (a) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
3. If the declaration as to any of the items described in subsections (a)(1) through (3) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
4. Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.

History.

I.C.,§ 32-11-209, as added by 2000, ch. 227, § 2, p. 623.

A.L.R.

A.L.R. — Construction and application of provision of hague convention on civil aspects of international child abduction specifying one-year period for parent to file for return of child wrongfully removed from or retained outside country of habitual residence, as implemented in International Child Abduction Remedies Act, 42 U.S.C. § 11603(b), (f)(3). 79 A.L.R. Fed. 2d 481.

Construction and Application of Consent and Acquiescence Defenses under Article 13 of Hague Convention on the Civil Aspects of International Child Abduction. 5 A.L.R. Fed. 3d 1.

Personal Jurisdiction.

A magistrate court did not have personal jurisdiction over a father, to enter an order establishing a sum owed to the mother under his military pension, because, while the father registered the parties’ Colorado divorce decree with the Idaho courts under this section, the father had never lived in Idaho and his only contacts with Idaho were related to child custody and child support proceedings. Wilson v. King, 160 Idaho 344, 372 P.3d 399 (2016).

A.L.R.

§ 32-11-316. Role of law enforcement.

At the request of the county prosecuting attorney acting under section 32-11-315, Idaho Code, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist the county prosecuting attorney with responsibilities under section 32-11-315, Idaho Code.

History.

I.C.,§ 32-11-316, as added by 2000, ch. 227, § 2, p. 623.

Compiler’s Notes.

The phrase “the effective date of this chapter” near the middle of this section refers to the effective date of S.L. 2000, Chapter 227, which was effective July 1, 2000.

Effective Dates.

Section 15 of S.L. 1993, ch. 335, as amended by S.L. 1994, ch. 308, § 10, read: “The provisions of Sections 1 through 7 of this act shall be in full force and effect on and after July 1, 1993.”

Compiler’s Notes.

The phrase “the effective date of this act” in subsection (2) refers to the effective date of S.L. 1986, Chapter 222, which was effective July 1, 1986.

Prior Laws.

Former§ 32-1204, which comprised I.C.,§ 32-1204, as added by 1986, ch. 222, § 1, p. 593, was repealed by S.L. 1998, ch. 292, § 1.

Compiler’s Notes.

This section was formerly compiled as§ 32-1205.

Effective Dates.

Section 15 of S.L. 1993, ch. 335, as amended by S.L. 1994, ch. 308, § 10, read: “The provisions of Sections 1 through 7 of this act shall be in full force and effect on and after July 1, 1993.”

Construction with Other Statutes.

Where a district court judge incorrectly interpreted§ 5-245 to include a complaint for renewal of judgment for past child support arrearages as an action or proceeding to collect past child support obligations, an attempt at execution of a judgment after the children reached their twenty-third birthdays was not within the statute of limitations. Thomas v. Worthington, 132 Idaho 825, 979 P.2d 1183 (1999).

Compiler’s Notes.

Former§ 32-1205 was amended and redesignated as§ 32-1204 by § 8 of S.L. 1998, ch. 292.

Prior Laws.

Former§ 32-1207, which comprised I.C.,§ 32-1207, as added by 1986, ch. 222, § 1, p. 593; am. 1993, ch. 335, § 4, p. 1244, was repealed by S.L. 1998, ch. 292, § 1.

Compiler’s Notes.

This section was formerly compiled as§ 32-1212.

Prior Laws.

Former§ 32-1208, which comprised I.C.,§ 32-1208, as added by 1986, ch. 222, § 1, p. 593, am. 1994, ch. 308, § 5, p. 963 was repealed by S.L. 1998, ch. 292, § 1.

Prior Laws.

Former§ 32-1209, which comprised I.C.,§ 32-1209, as added by 1986, ch. 222, § 1, p. 593; am. 1993, ch. 335, § 5, p. 1244; am. 1994, ch. 308, § 6, p. 963, was repealed by S.L. 1998, ch. 292, § 1.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2013 amendment, by ch. 248, substituted “department of health and welfare” for “person or entity designated in the income withholding order” in the last sentence of subsection (2); and, in subsection (5), substituted “shall send” for “may send” and deleted “the clerk of the court or, if the department is providing child support services on behalf of either obligee, to” preceding “the department” in the first sentence and deleted “clerk of the court or the” following “The” at the beginning of the third sentence.

Prior Laws.

Former§ 32-1211, which comprised I.C.,§ 32-1211, as added by 1986, ch. 222, § 1, p. 593, was repealed by S.L. 1998, ch. 292, § 1.

Compiler’s Notes.

Former§ 32-1212 was amended and redesignated as§ 32-1208 by § 12 of S.L. 1998, ch. 292.

Prior Laws.

Former§ 32-1213, which comprised I.C.,§ 32-1213, as added by 1986, ch. 222, § 1, p. 593, was repealed by S.L. 1998, ch. 292, § 1.

Compiler’s Notes.

This section was formerly compiled as§ 32-1215.

Compiler’s Notes.

This section, which comprised (I.C.,§ 32-1216, as added by 1993, ch. 337, § 1, p. 1266; am. 1994, ch. 365, § 1, p. 1144; am. 1996, ch. 53, § 1, p. 158; am. and redesig. am. 1998, ch. 292, § 18, p. 928), was repealed by S.L. 2003, ch. 304, § 1.

Former§ 32-1214, which comprised I.C.,§ 32-1214, as added by 1986, ch. 222, § 1, p. 593, was repealed by S.L. 1998, ch. 292, § 1.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2008 amendment, by ch. 328, added “at reasonable cost as defined in section 32-1214B, Idaho Code” at the end of the first sentence.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2008 amendment, by ch. 328, added subsection (11).

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2007 amendment, by ch. 2, deleted “upon a delinquency” following “An obligor whose income is subject to withholding” in subsection (1).

The 2011 amendment, by ch. 33, substituted “in the time and in the manner provided by” for “at least five (5) days before the date set for the hearing, by personal service or certified mail, pursuant to” in the last sentence of subsection (1) and substituted “in the time and in the manner provided by the Idaho rules of civil procedure” for “five (5) days prior to the hearing” in subsection (4).

Compiler’s Notes.

Former§ 32-1215 was amended and redesignated as§ 32-1213 by § 17 of S.L. 1998, ch. 292.

Compiler’s Notes.

Former§ 32-1216 was amended and redesignated as§ 32-1214 by § 18 of S.L. 1998, ch. 292.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Prior Laws.

Former§ 32-1217, which comprised § I.C.,§ 32-1217, as added by 1994, ch. 308, § 7, p. 963, was repealed by S.L. 1998, ch. 292, § 1.

Amendments.

The 2007 amendment, by ch. 2, substituted “department” for “clerk” twice in the first sentence.

Amendments.

The 2012 amendment, by ch. 257, inserted “with legal and physical custody” following “lawful guardian” in the introductory paragraph in subsection (2) and twice in subsection (5).

Curfew Ordinance.

Where defendant minor was cited for violating Wendell City, Idaho, Ordinance No. 442, a curfew ordinance which prohibited a minor from being in public from 11:00 p.m. till 5:00 a.m., the supreme court held that the ordinance was a reasonable time, place, and manner restriction with only an incidental effect on First Amendment freedoms; the ordinance was a valid enactment within the city’s power under this section, served the government’s interest in keeping juveniles off the streets, and did not reach an amount of conduct that was greater than necessary to further the city’s interests in the physical well-being of minors. State v. Doe, 148 Idaho 919, 231 P.3d 1016 (2010).

Amendments.

The 2009 amendment, by ch. 79, added subsection (6) and redesignated the subsequent subsections accordingly.

Cross References.

District court fund,§ 31-867.

Cross References.

Central registry for sex offensers,§ 18-8305.

Idaho bureau of criminal identification,§ 67-3003.

Amendments.

The 2009 amendment, by ch. 79, in the section catchline, deleted “family” from the beginning; and, in the first sentence, inserted “or a domestic violence court coordinator.”

Compiler’s Notes.

For further information on federal bureau of investigation identity history summary checks, referred to in the second sentence, see https://www.fbi.gov/services/cjis/identity-history-summary -checks .

Idaho Law Review.

Idaho Law Review. — The Efficacy of Idaho’s Domestic Violence Courts: An Opportunity for the Court System to Effect Social Change, Comment. 48 Idaho L. Rev. 587 (2012).

Cross References.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2012 amendment, by ch. 82, substituted current paragraph (1)(e) for the former paragraph which read: “Section 18-2511, Idaho Code (possession of a controlled substance or dangerous weapon)”.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 5 of S.L. 2012, ch. 82 declared an emergency. Approved March 20, 2012.

History.

(6) Assets in accounts with the obligor as sole owner or with the obligor and spouse as the only co-owners, are subject to withholding up to the lesser of one hundred percent (100%) of the asset or the amount of arrears owed by the obligor, as set forth in the asset withholding order plus any fees pursuant to section 32-1608(2), Idaho Code. Assets in other multiple party accounts are subject to withholding up to the lesser of a proportionate amount of the asset based upon the number of co-owners or the amount of arrears owed by the obligor, as set forth in the asset withholding order, plus any fees pursuant to section 32-1608(2), Idaho Code. History.

I.C.,§ 56-203F, as added by 1997, ch. 315, § 1, p. 931; am. 1998, ch. 227, § 1, p. 776; am. and redesig. 2004, ch. 213, § 1, p. 640.

STATUTORY NOTES

History.

I.C.,§ 32-1602, as added by 2004, ch. 213, § 2, p. 640.

STATUTORY NOTES

History.

I.C.,§ 32-1603, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1604, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1605, as added by 2004, ch. 213, § 2, p. 640; am. 2017, ch. 303, § 11, p. 799.

STATUTORY NOTES

History.

I.C.,§ 32-1606, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1607, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1608, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1609, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1610, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1611, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1612, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1613, as added by 2004, ch. 213, § 2, p. 640.

History.

I.C.,§ 32-1614, as added by 2004, ch. 213, § 2, p. 640.

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 2010, Chapter 236, which is codified as§§ 15-5-207, 15-5-213, and 32-1701 to 32-1705. The reference probably should be to “this chapter,” being chapter 17, title 32, Idaho Code.

Compiler’s Notes.

The bracketed insertion in the introductory paragraph in paragraph (1)(b) was added by the compiler to supply language seemingly missing from the enacting legislation.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

ALR.

ALR. — Construction and application by state courts of Indian Child Welfare Act of 1978 requirement of active efforts to provide remedial services, 25 U.S.C.A. § 1912(d). 61 A.L.R.6th 521.

Validity, construction, and application of placement preferences of state and federal Indian Child Welfare Acts. 63 A.L.R.6th 429.