*1 equal any particular accounting amount to the lesser of out reasonable reference to method, finally approved county the subsi- “customary costs of services or the dy customary charge. as a charge” required by for the services as regulation. federal and state The “custom- Bingham the 1980 Memorial contested ary charges” by must be the established of the department disallowance the charged private patients amount to of the county subsidy portion nursing general public for similar services. proposed customary charges. home’s Bingham argued department that the could Idaho counties subsidize the costs of care policy officially not the enforce without private patients county-operated nurs- promulgating a rule under the Administra- ing department homes. and the coun- department tive Procedures Act. A hear- ty nursing agreement homes were ing department officer held that the both the (paid by amount subsidized merely interpreting the lower of cost or county) actually paid by and the amount effect, customary charge rule then in private patients be included in the “cus- therefore no new rule was needed. On tomary charge.” The amount of the coun- appeal the district court it was held that ty subsidy was not known until the end of policy cannot be enforced without a year. fiscal Therefore, in order to es- properly being rule adopted under the Ad- charge tablish the private patient, ministrative Procedures Act and that pro rata subsidy pa- amount for each department’s inadequate. notice was posted tient was to and credited off the After reviewing the entire record and patient’s individual account year’s at the considering arguments parties, end. This method was “gross termed the we affirm the of the district up” up” or “bulk method of accounting and court for the reasons set out in the memo- county was used all the nursing homes opinion randum and order of the district up until 1978 with no disallowances court. department. department was con- Affirmed. respondent. Costs to No at- cerned that regulatory the federal agency torney fees. might subsidy view that was not a “customary charge” and make a disallow-
ance on the basis that it was inconsistent regulation. As a result of this
concern, pilot program County Caribou
Nursing Home devised so-called “Cari-
bou accounting whereby method” of subsidy
estimated
posted
amount was
purposes April reimbursement. On regulatory agency, the federal with- *2 Moscow, Tunnicliff,
Robert P. for de- fendant-appellant. Schwam, Moscow,
Marilyn plaintiff- for respondent.
HUNTLEY, Justice.
By appeal required are we resolve primary three issues: (1) Maryland prop- The of classification erty of dissolu- residents property having marriage, tion of purchased husband been seven marriage; months before the (2) separate property property purchased husband in Idaho from the sale Maryland property which under Maryland partially law “non-mar- was “marital”; partially ital” (3) propriety of the trial estab- lishing child for five children month per at rate of $250.00 graduated rather on a child than scale basis.
We treat each turn.
I.
respect to the characterization or
With
classification
purchased
facts
pertinent
are: Husband
in his
name
separate
prior to the
approximately seven months
resided
marriage.
years
approximately
it for
six
be-
farmed
Idaho,
moving to
it for four
fore
and owned
in Idaho
years while domiciled
before
more
marriage.
the dissolution
$120,000,
purchased
husband’s
having
paid
been
from
sav-
down
account, $35,000
ings
having
(2)
paid
acquisition; or,
been
whether the character is
closing
from
of a
time
loan
in some instances established at a later
procured
the husband
his
date
subsequent
Mary-
due to
events. The
collateral,
with the real estate as
court,
credit
rejecting
date
of initial ac-
$75,000 represented
balance
quisition
being
determinative under
*3
mortgage
by
and note
a
carried
the seller.
Gapsch
cases such as
Gapsch,
Idaho’s
v.
76
44,
(1954)
The court noted that under the rule This issue must resolved community gets compensation only for Maryland, of the law state of most defini the increase in value attributed to commu- tively expressed Harper Harper, efforts, v. nity gets nothing funds and (1982). Md. 448 A.2d appreciation in value. The Harper court then discussed the Cal- Harper, Maryland court charac- provides ifornia rule which spouse distinguishing
terized
factors for clari-
contributing separate funds is entitled to a
fying property
majority
in the
of communi-
“pro
Idaho,
tanto
property states,
community property interest” in
such as
as con-
improvements
in the
trasted with states such as
which
ratio
Marriage
sep-
model their laws on the Uniform
investment
total
Act,
(1)
being
community
and Divorce
whether the
arate and
investment
property, noting
takes on its character as marital
the California
rule
legal
or non-marital at the date of its initial
provides
equitable
more
result:
Harper
purchased
have
court did not
the benefit of
of Idaho law
where
Winn,
Winn v.
P.2d
community
105 Idaho
credit.
(1984),
fully
which more
enunciates the status
may
or non-marital
shift
application
result of the
As a
as.marital
property, marital
rule,
as individual items of
both the
who con-
California
non-marital,
are contributed
separate funds and the commu-
tributed
exchange
ac-
spouses
community
nity that contributed
funds
quired.
re-
proportionate
each receive a
and fair
comports
approach
we choose
Contrary
their investment.
turn on
general goals
Act.
Uniform
community
adopted
rule
in most
states,
the California rule does
community
compensation
not limit the
partnership theory, upon
which
enhanced value of the
for a share of the
community property and this
the law of
expenditure
property attributable to the
provision
Marriage and
of the Uniform
*4
efforts,
community
based,
requires
of
funds and
that the
Divorce Act is
community
proportion-
entitles the
additional-
a
rather
marital estate be entitled to
value attrib-
ly
property
to share in the increased
ate share in the value of
where
appreciation
equity
partially acquired
of the
to the normal
its
utable
by marital funds. Where the marital
in cer-
underlying
estate chooses to invest its funds
The rationale
California’s
together
non-marital
community property
property
interest”
tain
with
“pro tanto
funds, the
is entitled to a
theory. That
marital estate
rule is the source of funds
proportionate return on its investment.
it
theory
premised
concept
on the
that
permit
spouse
unfair to
a
who has
pur-
interpretation
“acqui-
contributed
funds
Our
of the term
en-
improvement
property
up
of
the Amer-
chase or
sition” has led us
and down
ownership
of sole
the shores of Old
joy all of the benefits
ican West and even to
regard
Spain.
appears
It
that the courts of our
property
of the
without
community property
im-
have not with
purchased
it had
or
states
fact that
been
complex
adapted to the realities of
community
funds.
ease
proved
with
relationships.
modern transactions
Harper
that
in fairness to both
court,
observing that We conclude
after
Harper
spouses “acquisition” must not arbitrari-
theory
in fact a
pro tanto
the California
ly
finally
be fixed on the date that
quoted
ap-
theory,
funds
source of
is created.
legal obligation
purchase
following language from Tib-
proval Rather,
recog-'
“acquisition” should be
(Me.1979):
Tibbetts,
MARYLAND PROPERTY Marital4 Husband's Non-marital Payments Year Toward3 Mortgaged Contribution Property Contribution Contribution (Husband’s savings) -0- down 10,000 1971 $ (farm income) 1,550 2,100 (loan 550 on husband’s insurance) life McHughs numerous loans in 4. After took out married in were all the years, using proper- they signed by the farm loans series over 7 some took were out both of them, pay ultimately paid as collateral. The loans were used to were off with com- previ- munity original mortgages the two to retire the funds. Therefore of these payments loans in the series. reflected loans are ous considered marital contributions. only went to the two here are those which original mortgages, paying and not to off the later loans. 352 Non-marital Husband’s Martial4
Year of Toward3 Payments Contribution Mortgaged Contribution Contribution Property timber) (1971 11,344 farm & 13,700 2,356 1972 $ $ $ (PCA (income) life& insurance loan) -0- 13,400 1973 13,400 $ $ (PCA & Loans) FHA income) (farm 12,976 135 13,100 $ $ (PCA & loans, bank income) farm 12,800 -0- 12,800 $ $ (PCA, bank loans) - 12,500 -0- 12,500 $ $ (PCA loan) 11,252 -0- 11,252 $ $ (PCA, bank loans) (non-marital 10,299 2,020 12,319 $ $ $ (Marital sale) of land *6 proceeds sale) land (non-marital 47,024 1,376 proceeds 48,400 1979 $ $ $ (Marital sale) land sale and land loans) bank (non-marital 3,696 504 4,200 1980 $ $ $ (farm sale) rent, of land income, land sales proceeds) mortgage. Maryland requires original law share of By husband’s non-marital, directly .36, to be must be was property source. traceable to a non-marital $14,456_ appellant husband has failed to show that Since $24,744 $14,456 + any equity directly in the farm is traceable to the basis of apportioned on Farm income contribution from the non-marital share of the that ratio. equipment proceeds, they will not be credited as a non-marital contribution. $9,800 equipment was sold. worth In 1975 purchased with equipment was Most of this farm; proceeds of the land sales not 7.Non-marital would its sale proceeds of therefore equity in the farm are traceable to and mari- apportioned between equip- treated in the same manner as were existed which applying the ratio tal proceeds. supra. See n. ment year same immediately prior sale. which loans proceeds of two McHughs had payments on the the amount than were more Toward3 Martial4 Payments Year of Husband's Non-marital Mortgaged Property Contribution Contribution Contribution 3,500 3,080 $ $ $ Total $18,911 Contribution $157,271 $138,360 Based figures, children, on the child for each above husband’s of the five non-marital share of Maryland property instead establishing graduated scale 12.0%, as of the date of divorce is calculat- premise based that once such ed: housing items as provided, and utilities are = .12 the cost of providing for each succeeding
$18,900_ $18,900 $138,371 + child is less. The record establishes that The trial court found that the value of the court was computations furnished Maryland property still owned based total expenses annual and total $103,500. McHughs is figure This is re- annual income of each of the duced mortgage encum- support court found that the required $88,396. brance still on the $15,- the wife for the children would be $10,- Husband’s non-marital share 12.0% per year. On this issue the trial court 607, leaving $77,789. marital specifically noted: (communi- The trial court found the marital my fixing ... it was intention in ... ty) in Maryland property to be these child amounts towas have $77,396. an amount that the mother could count every month to maintain the children Accordingly, the findings, conclusions proper in a fashion. be, are, hereby must Now, up budget it’s to her to provide modified to an additional communi- money, manage may mean there ty equity property in the enough money months and isn’t some sum of $393. money there’s some left over other months, during the course of the II. year up it’s to her to balance it out and The second issue is whether the court enough. see if there failing erred in separate property to find a Thus, properly the trial court formulated *7 in property the husband in the real judgment. the acquired by the as their home when requests support that child Husband also they moved to in Idaho 1977. The evidence spends the amount he on be reduced $5,000 establishes in payment 1978 a during food while the children visit him the property mortgage on the Idaho was made Additionally, McHugh Mr. summer. as- parcel from the sale of a of monthly serts that the total or annual child Maryland property. Using the the ratio support unreasonably high in view of the is applicable at the end of Mr. parties. circumstances of the McHugh’s separate property contribution $5,000 Findings of The of $810. 16.4% findings of fact do not disclose Fact, Judgment Conclusions of and Law gave adequate whether the court considera hereby accordingly. amended are duty ability tion to the and of the wife to provide support, ability and the of the hus III. payments band to make at the awarded Finally, we appropriate light consider the in expenses. level of his fixed It trial, the stating appears support may ness of further child that the child in terms of support award month fixed at in $250 have been a level which results the husband’s center non-discretionary university learning annual come for expenses constituting fixed an unreason- scholarship. faculty The students and portion able of his available net income among were divided Padua and other cen- findings after taxes. The do not address response cog- ters of learning. The what, any, if was given consideration rings day noscenti of that down the centu- expense of transporting the children for applicable majority ries and is opin- summer visitation and for offset for their Quomodo secatur, ion today. of manet keep by the spouse during other the sum- Bologna. Findings mer. and conclusions as to these marriage, Prior to the the defendant-hus- predicate matters are a necessary to deter- purchased Maryland prop- band herein support. mination of the level of erty made a substantial down Accordingly, we reverse award of thereon. of The value dou- support child and remand for further and bled perhaps trebled a few short specific findings more toas these consider- years. years, During se- those loans were ations, with the child level of to be cured, serving as securi- fixed based all relevant considera- ty. Approximately half of the tions. differing parcels, was sold in of and some purchase were utilized Moscow, property. ma-
CONCLUSION jority asserts that husband had invest- original provided judgment for a net approximately ed of his non-marital payment by the to the wife husband of assets $55,997.99,representing ½ of the communi figure subsequently interest. That majority’s legerdemain arithmetic $27,497.99by amended to virture of certain Mary- converts the marital interest exchanges obligations and items of figure zero in 1972 to a from respective parties awarded to the $77,000 1979, approximately while the judgment. amended Based on our prop- interest in the husband’s non-marital analysis II opinion, of Parts I and of this miraculously approxi- reduced to judgment downward amended $10,000. mately process may That well $613.50,8 making a in favor total leave If the intent observers breathless. against wife and the husband of majority “the con- is that who $27,094.49, together with interest from funds, tributed and the marital 1st, 1982, May established in the date unit that marital funds each contributed 1st, 1982, judgment April court’s proportionate receive and fair return commencement of interest. investment,” pro- their then Court has equally. attorney Costs to be No divided strange world fairness duced a hew and fees awarded. equity. of these various Since the division DONALDSON, C.J., BISTLINE, J., interwoven, par- and since the erties is so concur. *8 to stipulated ties the distribution have in to the wife return properties Idaho BAKES, J., II; parts in I concurs monetary judgment, for a reduction of the III. concurs the result changes can be any I effectual doubt made. SHEPARD, Justice, dissenting. agree majority I that the matter
During
century,
the fourteenth
Clement
How-
Bologna,
support
which had
of child
must be remanded.
V. excommunicated
be-
increase)
equals
$393.00
$810
8. Husband's
contribu-
marital interest
(‘A
$196.50
$613.50.
to Idaho
additional
tion
less
ever,
view,
in my
initially
par-
it should be reversed.
for
amount
contracted
a
attorneys).
say
husband is Commander in the United
their
do not
ties and
I
Navy
subject
States
governmental
support
to
adequate
such is an
amount to
assignment.
trial,
At the time of
his sta-
custody.
raise
children in
the mother’s
tion was a small sea coast
families,
town in Maine.
In
any but
wealthiest
He
custody
received
of one of the children.
divorce, particularly
are in-
where children
$25,-
His after-tax
approximately
income is
volved,
changes
style
substantial
life
in-
per year.
wife,
hand,
on the other
place.
able,
take
evitably
parent,
Each
if
educated, speaks
languages,
is well
five
must contribute to the
of the chil-
history
She,
employment.
has a
§ 18-401; Shumway
dren.
I.C.
v. Shum-
however,
employment,
does not desire
way,
(1984).
monthly support during child the two sum- months,
mer when husband would have
custody of the children. might expect
One that some of the hus-
band’s obligations might liquidated
the sale of the property. Such however,
an eventuality, prevented by
action the Idaho Mary-
land, with upon Mary- a resultant lien The trial court refused to
stay foreign appeal, those pending actions and he issued garnish- further orders of 699P.2d ment on pay the husband’s appropri- RATKOWSKI, Joan A. ate Navy. Notably, officials of the U.S. Plaintiff-Respondent, not situation is one in which the hus- v. pay band has support. refused child regular record indicates and substan- RATKOWSKI, Eugene payments every tial month. Defendant-Appellant. view, my already this action has been No. 14802. pending many years, for too with the inev- consequences falling upon itable disastrous Supreme Court of Idaho. parties their children. I see no April way adequately untangle affairs of the and would them leave they settlement at which arrived. support,
As to the I child would reverse the
trial entry of an decree direct the
order for child the amount (approximately
$800 month the same