*1 judgment should be affirmed award of costs and attorneys fees.
SHEPARD, J., concurs.
ON PETITION FOR REHEARING
DONALDSON, Justice. petition rehearing the above granted reargued.
entitled action was record, reviewed the con- arguments
sidered presented counsel,
and we continue adhere to the views
expressed and the conclusion in our reached
earlier opinion.
BAKES, J., J., McFADDEN, C. con-
cur.
BISTLINE, J., continues to adhere
views expressed in his dissent in which
SHEPARD, J., continues to concur. COOK, Plaintiff-Respondent,
Irene M. COOK,
William L. Defendant-Appellant.
No. 13245.
Supreme Court of Idaho.
Oct. 1981.
Rehearing Denied Dec. *2 right
ant was awarded the
to receive all
payments,
plaintiff
future benefit
and the
offsetting
received an
award of
addition,
magistrate
In
held that most
property
of the defendant’s
had
comingled
community proper-
been
Although
ty.
recognized
the court
that the
be es-
property
existence of
could
“accounting
method” of
tablished
911,
Evans,
tracing, see Evans v.
Paulsen,
H.
Sandpoint,
James
for defend-
Houska,
453 P.2d
Houska v.
ant-appellant.
568,
Houska
316,
Houska,
(1975),
it
Herndon, Sandpoint,
plain-
Steven L.
for
held that such could not be done with rea-
tiff-respondent.
certainty in
These con-
sonable
this case.
BAKES, Chief Justice.
appeal
clusions were affirmed on
court, and
now fur-
district
the defendant
Cook,
parties,
Irene and William
appeals to this
ther
Court.
in
on December
were married
California
They
lived
until Au-
in California
Guy v.
argues
The defendant
first
gust,
they purchased
when
a truck
distinguishable
Guy, supra, is
from the case
trailer
around
travel
and traveled
bar,
in
at
and that
courts below erred
parts
northwest United
of Cana-
States
applying
classify
that case to
defendant’s
Idaho,
settling
Sandpoint,
da before
in
compen-
right to receive future workmen’s
April, 1970. At the time of the
We
community property.
sation benefits as
property
owned
defendant
right
was
agree.
Guy
it
held that the
$23,025. During
approximate value of
group
receive future
under
California,
they
parties
lived
time
provided by
term
employed;
were each
while
employer
partial compensation
for
traveling,
party had
were
neither
income.
community property
labors was
upon
In reach-
subject to division
settling
Sandpoint,
parties
After
conclusion,
par-
ing that
this Court focused
antique,
established a retail
art and handi-
ticularly upon the fact
crafts store under
name of The Pine
“paid
partial
con-
employed
Tree. Defendant was also
for
past
employment.”
sideration for
driver,
approximately six months as a truck
distinguished
at
878. We
As
until he was involved in an accident.
Marriage of
cases of In re
the California
accident,
de-
of that
defendant was
result
Jones,
Cal.Rptr.
13 Cal.3d
permanently
to be
dis-
totally
termined
(1975),
Marriage of
and In re
began
bi-weekly work-
to receive
abled
Loehr,
Cal.Rptr.
Cal.3d
men’s
benefits.
those
by pointing out that
5,1976,
filed for
On
Irene Cook
October
upon
rested
the conclusion
decisions
granted
divorce. The
and a
divorce
military
do not
disability benefits
“federal
division of
made.
com-
serve as a form of deferred
primarily
con-
magistrate
division of
property,
past
pensation for
serviceman’s
reluctantly
Guy, 98 Ida-
cluded
ment,”
emphasized
while in
we
(1977), required
ho
disability bene-
in the case at bar the
“that
the workmen’s
benefits be
gratuity, but rather
do not constitute a
fits
The divi-
community property.
classified as
appellant’s
labors.”
consequent-
sion of the
208,
654
Boise,
630, 632,
189,
jurisdictions
95
Idaho
516 P.2d
(1973);
Inc.,
Forests,
Griffin v. Potlatch
E.g., Bugh
reached similar conclusions.
v.
174, 176,
413,
(1969);
Idaho
190,
(Ariz.App.
Bugh, 125
Ariz.
455,
v.
Bakery,
Arnold
Idaho
Splendid
1980);
(Tex.
Hicks
Flynn v. be P. supra; During marriage, property. Guy Guy, Su Suter ter, be- security comes subordinated interests Simplot Simplot, 96 Idaho *4 community. consequence, marital As a in- (1974). is true the case of The same spouse’s earning come a attributable to ca- benefits, particu compensation workmen’s pacity marriage prop- is during when a larly since is unforeseeable if or erty. Hooker, See Hooker v. Idaho However, marriage will end divorce. Hiatt, (1972); Hiatt v. becomes marriage a is terminated it once (1971). a community’s interest evident limited, is compensation award Nevertheless, marriage once a is termi- beyond an amount attributable and benefits dissolved, nated and the each marriage during earning power to lost securing person’s right work to toward in separate property of the constitute the wellbeing own on. continues It Bugh Bugh, supra; v. jured spouse. See compensation follows that since workmen’s situation supra. Hicks v. Such is the to or make loss find earn, Accordingly, case we capacity of an future to in the at bar. individual’s treating the erred in lay cannot claim that the courts below compensates whole of where it receive work the benefit future defendant’s period of which extends compensation benefits as men’s beyond To hold other- the time property. deprivation wise would result in the claims Additionally, the defendant source of financial securi- individual’s basic magistrate’s in the conclusion that error ty. question classifying The dispositive was insufficient to enable evidence benefits as com- separate defendant’s court to trace the therefore, munity separate or through accounting method. not whether receive benefits Evans, P.2d v. 92 Idaho Evans marriage, See during vested but rather to what Houska, v. 95 Idaho Houska
extent for loss of award v. Hous- earning Houska marriage. Other arising special damages from a special indemnity provisions of lost income in for- contained differently action, (now 72-128). are treated mer I.C. 72-313 § § I.C. purposes or of classification Close General Constr. for the community also, See it was stated that not need thing P.2d at 879. We be considered in “[a]nother this should pain suffering is true whether the same in this case connection is the decide under workmen’s special payments physical between and financial loss which the workman body injuries. by loss of members sustains reason of one these provisions intended, legislature fixing of the work- under other must However, indemnities, it should law. this take into con- schedule of provision, elements, indemnity special sideration in some measure all these be noted that the 1970), repealed along going earning power, (supp. I.C. by § foss by up legislature replaced in 1971 and make member ployment.” who loses thé loss to workman Although body are the two of his in the of his em- 72-428. course similar, prior “indemnity” (Emphasis added.) Rogers in the v. Yel- reference Co., supra, replaced “in- the words lowstone clear Park makes it statute been general pain suffering, damages come benefits.” Justice, ka, BISTLINE, concurring. specially deciding magistrate point, this conclud opinion only my the Court’s To mind prepon ed that “this court cannot find already more confuses an confused area combined derance the evidence what distinguishes law. The Court earnings plaintiff and defendant were (1977), by main- nor can it determine taining community expenses were. To do what equated sue can better be with a speculation.” would engage so be to fringe than ben- one’s rather antique evidence of net income for the analysis If efit of this plaintiff’s handicrafts store consisted of the step be to pursued, the next would decide statement net income was about 40% a cause of action an accom- whether sales, gross and the defendant’s subse becomes plished tort quent testimony reciting gross in yearly property after divorce. figures. come Evidence of ex pursue analysis, declines to penses for was in form choosing holding its on instead reach registers covering approximately two check analysis purpose behind worker’s years marriage. of the year nine It 2V2 compensation benefits. The Court main- asserting clear that party compensation ben- tains that since worker’s *5 comingled prove character of assets must earning lost paid efits are to substitute for that “with reasona capacity, no claim to Speer ble certainty particularity.” after disability for Quinlan, Court, words of “To hold otherwise (1974). record, reviewing After we af deprivation in indi- would result firm the trial court’s conclusion that security.” vidual’s basic source evidence in this case is per insufficient to Unfortunately, applies equal- this rationale tracing mit by accounting. Guy. The disability ly well to the The decision of the one district court end result is that the Court has used below reversed, and the distinguish Guy, case is but ordered rationale to has then remanded for a property by mag- applies redivision switched to another rationale which Guy istrate opinion. equally consistent with this to to reach its well order result.1 JJ., DONALDSON, Nonetheless,
McFADDEN and
I
dis-
do believe this case is
Guy.2
appellant’s
concur.
tinguishable
from
One of
Kosko,
Bugh
Bugh,
(Ariz.
1. The Court’s citation to
125 Ariz.
(Ariz.App.1980),
basically
App.1980).
Ariz.
That
court utilized
Bugh
(Tex.Civ.App.
Hicks v.
court in
to
In the not case worker’s pointed out that the analogy supra, holds. As not- it was the above applied only in a situation majority, ed Yellowstone worker’s *6 and between husband involving liability “stands in common party tort usual third employ- of civil action wife and that i.e., unchanged, er for remained on-the-job on account of situation the rule injury.” I was simply Thus would hold the award benefits, being be cannot opinion, instant case my In more akin to tort Ei- Guy Guy, supra. distinguished from policy purchased than to an insurance wrongfully or the ther decided assets, separate proper- become wrongfully In instant case is decided. ty after a divorce. although employer, not statu- the husband’s required, purchased a torily so SHEPARD, Justice, dissenting. fringe benefit of the policy as a insurance husband employment. The majority opinion today is an indi- husband’s totally disabled of illness became disturbing tendency cation of this reason Court’s This monthly benefit. received a precedents overturn and doctrines of estab- and that benefits opinion held relations. in a unanimous lished law in the field of domestic the mar- following paid dissolution view, implicitly over- be my today’s opinion hus- property of the riage were rules rejected the Court and wife. Therein any rationale band providing without and cases of certain California view, opinion the rationale majority my therefor. rigid follows out that California already pointed attempts to arrive at what it be must doing, I In so perceived “right” as a result. the Idaho and in contrast stability equally divided nothing suggest it lends discre- equitable power and Idaho, have the only pro- courts but rather can the law in equally well have been This statement could lay whole of the benefit claim to the cannot to a it could have led period utilized in and where it beyond case. different result in that time of divorce.” which extends Hence, today's tion to divide toward decision is founded on achieving just equitable the end of to those of in all two facts identical but 32-712(1). result. I.C. § respects. Guy minor an employ- involved voluntary procurement er’s insurance while case, course, In the instant the learned man- today’s statutorily obtained to, judge attempted district hopefully coverage. Guy dated insurance involved to- did, accomplish equitable just such a disability by tal reason of illness while to- by awarding result the husband the future day’s disability by total case involved reason benefits, albeit accident. Both cases involve benefits an offsetting employment award to the from cases wife from the both other community property, which it should allegedly involve the to benefits which be noted was not insubstantial. may vested and which be payable following mar- dissolution case, In the instant the husband’s riage. er, required by statute, a policy obtained covering husband-employ- I would affirm the decision of the district ee against injury accidental incurred court. course of The husband injured was so received award. The
majority does not tell us whether such
award was to the a lump husband in payment pursuant
sum difference, or what any, if
such lump sum payment might or would today’s
make in decision.