*1 majority, empt by ordinary judg- noted this cause has been from execution before this Court in Ratkowski v. Ratkow ment creditor. In this case Mrs. Ratkowski ski, (1985). 108 Idaho 699 R2d 1369 holds no status other than that of the ordi- There, upheld the trial Court court’s nary judgment creditor.
ruling contempt that Mr. Ratkowski inwas case, although In the instant the result is pay failure to his former wife the sum unfair, palpably unjust, nevertheless I per month. the instant case feel it mandated the insulation afforded however, the issue is different than in Rat- by the federal statutes. I, Here, supra. kowski the sole issue is pay of the trial court to order directly
ment from the United States under 1408(1) provisions (Former of 10 U.S.C. Act).
Spouses Protection majority,
As well noted in the at the proceeding
of the divorce the then agree- husband wife entered into an ment any community that the wife released COMBS, Claimant/Appellant, Glenn military interest the husband’s retire- therefore, ment benefits. consideration agreed pay the then husband a certain LOGGING, Employer, KELLY monthly Hence, sum on a basis. the in- presents sup- stant case no issue of child
port, alimony, opinion nor in my Employers’ Wausau, Insurance of 1408(1). purview within the of 10 U.S.C. Surety, Defendants/Respondents. Rather, occupies Mrs. posi- Ratkowski no No. 16909. except judgment that of a creditor who clearly upon cannot execute a federal mili- Supreme Court of Idaho. tary Nor, my opin- retirement benefit. Feb. court, may Court, ion a trial nor this after a time, ten-year lapse of change amend or
judgment and alter the status of Mrs. Rat- judgment from that of
kowski creditor to recipient alimony.
that of a in majority opinion,
As well noted
Idaho decisions are clear that without an divorce, original from an decree of property portions division of that de- final, judicata, jurisdic-
cree are res and no modify. agree
tion exists to I further majority opinion: “Clearly,
as noted jurisdiction court had divorce to enforce
the terms of its own decree.” But never-
theless, nothing the order entered was garnishment
more than an order of issued
to enforce collection of an amount of mon-
ey pursuant money judgment. ato Since it nothing money judgment, more
was than a jurisdiction
the court had to issue exe- defendant,
cution on whatever assets of the found, they might
wherever be save and
except military retirement benefits to paid by the United States. As to those benefits,
military they retirement are ex-
Idaho, He most his life. for worked Logging 1972 until Kelly from his accident on November driver, Kelly Logging a truck Combs As hour, averaged at 75 hours a week thereby a averaging week. Combs’ $630 logs required him haul in and around job to spent Montana. He five out in, days living seven or at least based of, motel in Missoula. Combs returned noted, the weekend. As Salmon on injured on Combs his back November unloading in truck. Missoula while January 1984, sur- Combs underwent operation gery for a herniated disk. The successful, but was somewhat the Commis- found cannot to his sion that Combs return prior job he should not lift more because pounds any than time. surgery, After convalescence began retraining as commercial Combs Nevin, Boise, Seiniger for claim- & pilot. percent He his wife own a 50 Jr., Seiniger, ant/appellant. Breck Wm. business, partially interest air service argued. operated by his son. fully owned Boise, Cantrill, Skinner, King, $4000, Sullivan & retraining cost of the was with R. defendants/respondents. David for surety for by the and $2000 $2000 argued. Skinner Rehabilita- the Idaho Division Vocational that the Commission found tion. BISTLINE, Justice. pilot is cannot as a he Combs work because (making flying required to take medication injured back Claimant Glenn Combs was dangerous) of Combs’ restric- and because removing in an industrial accident while lifting. weight as to tions log hauling “wrappers” on a loaded truck. surgery subsequently Combs underwent found is The Commission that Combs All a herniated disc. doctors involved for impaired ex- physically permanently perma- partial that suffers a agreed Combs percent person. of 10 of the whole tent impairment rating percent. nent of 10 finding dispute. The Com- This primary argument is that the Com- Combs’ per- that is mission also concluded Combs awarding par- a permanent mission erred extent of manently partially disabled percent equivalent only 35 tial person. The Com- percent of whole have found person, of the whole should argu- specifically rejected Combs’ mission category. he the “odd-lot” falls into category, that he into the odd-lot ment falls Although agree we cannot with is still to do found that able he is an “odd-lot” worker contention that signifi- duty light medium and work. Of explained matter reasons review, in- the Commission on our cance and remand to we do reverse below Missoula, Mon- the labor market cluded proceedings. for further Commission tana, Idaho, reason- as well as which to deter- geographic area with I. post-accident potential mine Combs’ finding did finding job. that Combs old, married, and has years Com- category, the fall into the odd-lot He a tenth two married children. had that Combs relied on the fact mission and has lived grade education established, legis- even attempted to lt is well without that he failed to establish direction, statutory that a worker Montana. lative secure work industrial accident is not
who sustains an
his or her home to
required to move from
II.
eligible
find
work
order to be
suitable
findings
fact
Appellate review of
Rather,
compensation.
for worker’s
*3
limited in
by
made
the Commission is
a reasonable
worker must
seek work
by
scope. Findings supported
substantial
his or her home. Professor
distance from
competent
not
disturbed on
evidence will
be
Larson,
leading
in his
treatise on worker’s
Parris, 115 Idaho
appeal.
Greenrod
compensation, writes:
109, 110,
Const,
134,
(1988); Idaho
765 P.2d
135
not re-
test of reasonableness does
[T]he
9;
art. 5
I.C. 72-732.
§
§
quire the claimant to look for work be-
by
are
bound
conclusions of law
we
yond
general
the
area in which he lives.
Commission;
the
by
drawn
an order of
must
set aside where the
Commission
be
Larson,
Compensation
2 A.
Workmen’s
misapplied to the evidence. On
law is
(footnote
57.61(d),
(1985)
at 245
Law §
questions of
we exercise free review.
law
omitted).
in accord
Case law elsewhere is
Const,
9,
5,
supra.
art.
Idaho
§
proposition. E.g., Phelps Dodge
with
Comm’n.,
Ariz.
Corp. v. Industrial
90
determining
permanent
Combs’
(1961) (claimant
not have
Lyons Indemnity Industrial for reconsidera- Reversed and remanded Fund, supra, that claimant falls into the present of claimant’s and future category odd-lot as a matter of The law. gainful employment to under the obtain Lyons compelling facts in far more were provisions of I.C. 72-425. The Commis- § here, presented leaving that those us un Montana, sion shall not consider that, apply principle to the able “Where potential market, only labor but undisputed reasonably evidence is and is geographic areas of distance reasonable susceptible only interpretation, one to home. claimant’s a whether claimant falls within the odd-lot category is a conclusion of law.” 98 Idaho claimant; attorney no fees on Costs to 2, 1364, n. P.2d at n. 2.4 There appeal. fore, we remand to the Commission for a disputed determination facts in whether JOHNSON, JJ., HUNTLEY and support finding that this case is concur. worker, not, odd-lot if extent Justice, BAKES, dissenting: from work exceeds
which holding by majori- I permanent physical impairment. Upon his dissent from ty the Missoula remand the Commission will not consider that as a matter lawof Missoula, Montana, in claim- statutory rea- labor market cannot be included as right lung Clearly leg, injuries eyes, dam- to both is an "economic” factor which weigh heavily age. placed should in the Commission's evalu- held there that the evidence disability. I.C. ation See category matter of in the odd-lot claimant 72-430, quoted supra at note 1. however, § Here, to law. concluded Id. we have making the Com- of that decision to extend the 4. The claimant in Lyons suffered a debil- host of mission. itating physical hearing limitations: binaural impairment, injuries, a twice fractured five back competent evi- geographic area” within Where there substantial ant’s “reasonable support the commission’s factual employability must assessed. dence his finding, finding appeal. will stand on employee’s “reason- such constitutes an What Const, 9; 72-732(1); question of Idaho art. geographic area” is a fact § § Co., v. Bennett Lumber Johnson Ida- by the Industrial Commis- to be determined (1988). ho all “considering sion after employ- economic circumstances of the ee_” majority opinion simply The overlooks added). (emphasis I.C. § competent evi- the fact that substantial circumstances of the Here the “economic finding. supports dence the commission’s employee” years that for he had lived were accident, preceding the many years For working made his but chose, for rea- voluntarily whatever Missoula, Montana, Finding area. sons, in his town. to work home XXIX, the commission found: Fact city, sever- Combs chose instead to make significance is the additional place driving away, distance al hours’ “Of fact that at the time his accident and employment. prior period an extended narrowly constricts its majority so that, although Claimant’s home and actually judi- as to reading of I.C. 72-430 family remained in By requiring the cially modify the statute. days actually spent seven five consider the Industrial Commission *5 in, living of, at least based out or employee’s geographic area around an Missoula, Montana. think motel in We “home”, directly contradicts majority those these circumstances constitute 72-430 that “all requirement of I.C. § types ‘personal and economic cir- personal and economic circumstances employee’ which the cumstances of added) employee” (emphasis of the be con- legislature has directed that we consid- factually determining the em- sidered when assessing er in Claimant’s ployee’s geographic area.” “reasonable disability under § 72-430. reading pre- The narrow of I.C. 72-430 appropri- conclude that it is therefore sumes, employ- matter of that all ate to include the labor market Mis- their homes. As the ees work at or near soula, Montana, in Claimant’s ‘reason- recognized, many employees in commission geographic area’ within which his today’s society away choose to work mobile assessed, employability must be since homes, returning periodically from their truly earning was not his Claimant Indeed, many types with their families. through work done in the Salm- require away-from-home employment on area at the time his accident or e.g., performance, trucking, shipping, bus- prior some to that. In other Likewise, traveling ing, flying and sales. words, it does not seem unreasonable voluntarily choose to many jobseekers point require at this making home place work in one while their light duty seek suitable medium and {e.g., for economic reasons rela- elsewhere work in Montana or areas tively pay promotion opportuni- better comparable distance Salmon from area) ties in the work and for home which would allow him to return {e.g., relatively living condi- reasons better weekends, since this to Salmon on the or, perhaps, no desire to live tions at home type arrangement un- exactly home). at gainfully employed he was der which prevented him from prior injury. to his The record is de- While Combs’ injury performing type performed of work he any void evidence that Claimant nothing in sought or areas while there is such work Missoula impaired comparable indicates that it his distance from record which If in Missoula. any nor is there evidence that no labor ability to continue to work performing within those areas injury prevented him from market exists (Em- pays a light duty work.” duty employment which medium and heavier rate, that was evidence original.) higher hourly phasis in should, did, con- which the commission arriving findings. its
sider in factual is error for this to ex- it Court considering
clude the commission
relevant evidence. C.J.,
SHEPARD, concurs. SELLMER, Claimant-Appellant,
Blaine Ruen,
Warren RUEN and Vernon dba Farms, Inc., Employer,
Ruen Exchange, Loggers Surety,
Associated
Defendants-Respondents.
No. Supreme Court of Idaho. Jarzabek, Verby, Sandpoint, Elsaesser & *6 15, 1989. Feb. Joseph claimant-appellant. Edward argued.
Jarzabek Moffatt, Thomas, Blanton, & Barrett Boise, defendants-respondents. Thom- argued. as V. Munson SHEPARD, Justice. Chief This is from an order of the holding that claim- Industrial Commission ant-appellant injured while Sellmer was en- pursuit, gaged agricultural and hence under the strictures of the covered statutes, compensation workman’s 72-212(8). affirm. Farms, employed Ruen Claimant was appeal is con- which as this insofar cerned, operates potato “cellars” or two warehouses, on Ruen Farm one located located in properties, the other Clark Fork, raises and har- Ruen Farms Idaho. in a potatoes are first located vests farm, moved and later cellar on the Fork. Both cellars are cellar Clark Farms, Inc., Ruen owned Ruen Farms, potatoes are stored therein. Inc.