Ziegler v. Ziegler

691 P.2d ZIEGLER, Mary Mary Ann aka Ann Co

laluca, Plaintiff-Respondent-Cross

Appellant, ZIEGLER, Henry

Earl

Defendant-Appellant-Cross

Respondent.

No. 14464. Idaho. Appeals

Court 31, 1985.*

Jan. for Review Denied

Petitions 9,1985.

April

* Appeals’ opinion dat- Editor’s Note: Court reissued on Jan. 1985. ed was withdrawn reinstated Oct. personal property

an award to the wife during repossessed had been trial. cross-appealed The wife to the district authority challenging the limit parties’ children an area within a radius d’Alene, of 100 miles of Coeur Idaho and ordering that the children not be taken prior permission from that area without petitioned wife from the court. The also for review of order holding contempt for remov- her permis- Georgia ing the children to from the sion court. appellate capacity, the district its magistrate’s judgment

court affirmed the contempt The district court and order. determined, jurisdic- original within its also tion, parties dur- four motions filed ing pendency appeal. of the These (a) (1) to were the husband’s motions children, (2) custody change to termi- Wash., pro Henry Ziegler, Spokane, Earl (3) payment alimony, nate the order for of se. prohibiting an issuance of writs for order d’Alene, Michaud, R. Coeur James alimony to collect accrued and of execution appellant. plaintiff-respondent-cross (b) support payments; and the wife’s child modify motion to the decree to eliminate FOR DENIAL OF PETITIONS ON 100 mile restriction. The dis- REHEARING. findings fact entered of and trict court prior opinion opinion supersedes This our determining of law each of conclusions 1984, 4, hereby which is September issued sum, the terminat- motions. In these withdrawn. alimony requirement ed the and entered prohibiting execution to any order further PER CURIAM. alimony and child collect either accrued support, support; future child and appeal or case is before us This di- all motions. After no- action. The court denied other cross-appeal in a divorce filed, to by magis- tice of this Court was was heard a proceeding vorce court entered additional order parties appealed from district Both trate. collecting modifying prohibition against court. to the district magistrate’s judgment alimony. That support child and accrued sought review appeal, the husband On that post finding $300 conduct order allowed the wife (a) magistrate’s of in lieu of fine “security” court as wife constituted toward the of the husband contempt of imposed by (b) magistrate’s cruelty; extreme of execution writs minor children order obtain custody of award support or any child wife; award “to collect amounts (c) magistrate’s unpaid in arrears and wife; (d) magistrate’s now alimony to the may hereaf- support community was entitled amounts of conclusion that the unpaid” to the ter the future become improvements reimbursement for (e) court.1 further order separate property; real husband’s military on the husband’s retire- disputed posted the execution wife 1. It is not “security" support and has continued to collect

531 seeking specified Both further re- appeal, rights visitation in the husband. disposi- view of some of the court’s district We presented have reviewed the record tions. We court in all the magistrate. findings affirm district magistrate’s respects, except magistrate’s substantial, as to the or- are supported competent ev- holding contempt der the wife in of court. idence. contempt vacate that order. awarding custody, the court is required provide custody of chil for the

Our standard of is well review set may dren as necessary proper in seem tled. Where a sits district court as an the best interests of appellate the children. I.C. purpose court for the of review § 32-717; Schmitt, Schmitt v. 83 Idaho ing magistrate’s judgment, care, (1961). 362 P.2d 884 required to determine whether and education minor is commit there children competent is substantial and evidence court, and, ted to the discretion of the trial support magistrate’s findings of fact discretion, unless an abuse there is findings conclusions of law. If these the court thereto are so relative supported and the conclusions follow will not therefrom, be disturbed. legal if Maudlin Maud principles correct lin, 188 P.2d 68 Idaho applied, have been then a district court’s affirming decision magistrate’s judg argues The husband that the deci upheld ment will appeal. on further sion of the to award Ustick, Ustick v. Idaho P.2d “gender children the wife was (Ct.App.1983). 1083 based.” showing He submits statistics cases, majority that in custody the vast of respect to the motions deter mothers, of minor are children awarded to by mined findings its of not that suggests fathers. He also “the fact will be set clearly not aside unless rights constitutional of children re not supported by [the] erroneous or substantial garding parents” both have access to been competent 52(a); evidence. I.R.C.P. overlooked. Bledsoe, 84, Jensen v. 100 Idaho 593 P.2d 988 If the district findings court’s However, is in there no indication the supported by are the evidence then we will magistrate record that the awarded custo- determine whether the district court’s con dy wife, case, to the in this on the basis of clusions of law follow from the facts and if gender. magistrate's findings, The based legal principles applied. correct were trial, presented on evidence at demonstrate magistrate that the thoroughly considered turn, discuss, We will now each of the the relationships parents of both to their parties’ appeal. contentions on this We children and care parent the that each begin with the issues raised the hus- been provide and will be able to for the band on from the district court’s persuaded children. not We are that the the magistrate’s judgment affirmance of magistrate gen- made his decision on based and decree of divorce. Rather, der. stayed the court within the § guidelines Moreover, of I.C. 32-717. I explained fully below, magistrate more the Custody a. the children. of endeavored maximize the children’s ac- proceed- At the conclusion of the divorce cess to parents both the ordering custo- ing, magistrate the spouse entered detailed find- dial not to move from Coeur ings concerning of fact the relative suitabil- d’Alene area without court authorization. ity party of each to be a of The magis- custodian of determination magistrate trate, children. The upon concluded that based substantial evidence and the wife application was more suitable and award- proper legal principles, will her, ed subject children to not be disturbed. throughout pendency

ment proceedings. benefits of these case, suggests magis- context of facts of The husband also applied attorney appointed should been trate a rule stated Suter v. Su- ter, 461, 465, protect We the interests of the children. 97 Idaho 546 P.2d record, however, (1976): not in this where do find ap any application made to secure was efforts, labor, community indus- [W]hen

pointment attorney for the children try, sepa- value funds enhance the nor the record indicate that the does com- property, rate enhancement is holdWe sponte. should have done so sua munity property for which communi- regard. no error in this occurred is ty entitled to reimbursement. uphold magistrate’s judgment Property b. award. community is entitled to reimbursement magis- urges The husband next for enhanced value husband’s determining was a com- trate erred in there separate resulting from property communi- family The munity interest home. expenditure community ty labor or found that home was funds. husband, having separate property of the Alimony. c. a loan acquired through been obtained separate credit of the husband husband contends awarding alimony He paid largely loan for with the hus- erred wife. respects. two band’s also this determination in separate funds. trial court attacks First, community found funds ex- he contends former Idaho statute had been (in alimony award pended improvements which effect at the time the enhanced case), allowing made in this an award the value of the home. The court conclud- was wife, although alimony ed that hus- in favor unconsti- property was the discrimination, citing gender separate property band’s it was tutional as Orr, 440 U.S. 99 S.Ct. Orr v. subject right to a of' reimbursement (1979). Second, he maintains L.Ed.2d 306 $11,268 community in the sum his award where improper community the en- contribution to divorce, income, was the time of the sole at improvements hanced value to and due regard In this he military pay. retirement community the $692.00 the sum of 210, 453 McCarty McCarty, v. U.S. cites the contribution toward reduction of (1981) 69 L.Ed.2d 589 101 S.Ct. principle obligation balance of the [sic] are military retirement benefits holds that against property, for a total commu- the and cannot treated as separate property $11,960.00. nity of reimbursement community property in a divorce action. original.] completed in [Blank findings and conclusions magistrate’s respect In to first the husband’s We also upheld by the district court. were this was point, decided while cases affirm. dispositive. Murphey In v. pending are 720, 653 Murphey, had 103 Idaho P.2d shows the home The evidence (1982) $31,250 Supreme held that al acquired. it our Court of when was value $50,000 though Idaho statute —as of at the time of the the It had a value case found, evi the divorce in the instant on the existed when divorce. The trial, granted be that increase was unconstitutional at the presented dence —was (but husband) ($7,482) not a could only to infla cause a wife part was due in value alimony, constitutional de ($11,268) community to be awarded the part tion and by judicial construc magistrate further fect could be remedied funds. The labor and extending of stat community earnings application had of tion found that $692 sexes. princi persons ute to cover married both payments make on the been used to effect, opinion in Nev After To the same see our upon the house. pal of the loan Neveau, relating 103 Idaho P.2d 655 v. reviewing statutory and case law eau Applying (Ct.App.1982). the Idaho statute community property, in the separate and to as broadened and to Murphey Neveau 16. There been some indication that case, we that alimo- hold the award of if awarded of the chil- [the wife] ny to the was not wife unconstitutional. may dren leave the northwest to return to her family’s in Georgia— residence regard In second to husband’s there-has been also some that indication property point concerning separate — husband], if not awarded the custo- [the benefits— military nature of the retirement children, of the dy given opportunity whether those the issue is not benefits take the depart would children and with parties between be divided in a could any despite them court order. they whether belonged divorce action or solely to the husband as separate property. Rather, the issue is whether the fact, 19. view of as indicated require

could pay alimony husband to above, parties given both some when husband’s sole allegedly income area, may depart this they indication it is separate property. right opinion the Court’s that both right [the wife] The husband does not contest should be sub- visitation [the husband] magistrate’s determination that following ject limitations: was in wife of support by way need alimony or that she right party had shown a Neither shall remove a. alimony in this case. Nor does he contest children from the United States with- appropriateness of the amount prior awarded aout court order. magistrate. awarding alimony, shall parties b. Neither take give court should due consideration the children to reside in area be- correlative needs of the abilities (100) yond a radius of one hundred equity Shepard situation. d’Alene, miles with- from Coeur Idaho Shepard, 94 Idaho 497 P.2d 321 prior out a court order. We believe the source funds re imposition The wife contends the quired satisfy obligation is immate 100 mile two improper restriction is Indeed, rial. following a divorce and until First, alleges reasons. she the limita- remarriage spouse obligated who is she, custodian, tion on where as can reside pay the alimony, the source of those the children unconstitutional funds—in always sepa would be Idaho— impairment right trav- of her of freedom to property. rate uphold magistrate's Second, el. this condition she insists that of alimony. award her, imposed prior notice through resulting process a denial due II to be deprivation opportunity notice We turn next to the cross-appeal wife’s im- on the court heard the issue before from the district court’s affirmance of the per- are not posed that limitation. We magistrate’s judgment. The wife’s sole by arguments. suaded her contention concerns imposition by the the magistrate of a relating condition to the Constitutionality tation, residency.

children’s a. limi- divorce, theAt time of the parties the

were domiciled in Although it County, Kootenai never near has been estab d’Alene, Coeur Idaho. parents The wife’s from which provisions lished constitutional Georgia. resided in On right derives, several occasions to travel the United parties’ marriage particular- during Supreme and States long Court has recognized ly parties on occasions when the were right em- the fundamental of citizens to travel disputes, in broiled domestic wife had Helms, interstate. See Jones v. 452 U.S. gone to Georgia parents. 412, 2434, to be her near 101 (1981). S.Ct. 69 L.Ed.2d 118 presented From evidence at right trial the When analyzing to challenges travel magistrate found: legislation, to state Court used the

534 equal my opinion travel. there was such a

“compelling state interest” when In test protection is in this process compelling or substantive due interest case. state right. claimed to be source See every In case of divorce virtually 618, 89 Shapiro Thompson, v. 394 U.S. they are involved young where children 600 A classi- S.Ct. L.Ed.2d There no are the victims. is innocent infringes fication that fundamental dispute best interest chil- that the right constitutional to travel is invalid un- they dren should have dictates necessary promote less to be a “shown to love, companion- guidance and support, governmental compelling interest.” [Em- ship Such affords parents. their both phasis original.] in Id. 394 at U.S. greatest probability S.Ct. at 1331. useful, happy, will law- into a mature only We have found one similar case capable abiding citizen productive addressing the issue raised the wife society forming strong part of a regarding right her to A Kansas travel. like mold. producing progeny in a appeal recently court of determined that custody situa- in courts and child divorce right may to travel be affected desirable these guarantee tions cannot custody needs of the children involved in a responsibility results but is dispute. Carlson, 8 Kan. Carlson action fos- appropriate courts take (1983), App.2d 661 P.2d 833 a modified when it results such promote ter and custody decree awarded to the because of parents appears plaintiff long “for as so she resides them are not going animosities between Kansas, County otherwise cus- McPherson cooperate in effort to attain P.2d with defendant.” 661 tody placed goals. Providing assuring the maxi- discussing specifically Without at 835. parental love, opportunities mum governmental inter- “compelling whether guidance, support companionship is a utilized, Kansas should est” test compelling my state interest that opin- the decree. upheld appellate court reasonable ion warrants interference inter- legitimate state court stated right of the constitutional with travel restricting residence of a custodi- est necessary. when of a the best interests parent al to further clearly case sup- The evidence parent’s right priority child had over determination that the trial court’s ports plaintiff’s right to Noting that the travel. with interference unre- some reasonable only “limited her desire travel was necessary. travel rights of stricted parent,” her status as the custodial retain acrimony and bitterness great There was parent “a held that divorced the court parties both ex- parties; between the minor children has been custody of whom strong and de- pressed very attachment forego required may be entrusted ... children; were sire for the visitation, rights to forfeit some type of face unable to meet be, may consistent the ease acrimony and face confrontation and welfare of the children interests best bitterness; parties at times had both parent.” the other rights and the thoughts indicating made expressions P.2d at 836. children and the be- removing themselves in the analyzing this issue of the Court and yond jurisdiction appeal, case the district instant par- for the other beyond practical means well reasoned decision. a rendered to the children. These ent visit with adopt it in further quote verbatim support the trial certainly facts would holding: our explanation of that and conclusion court’s inference danger par- that either of there was Thompson, supra, stands Shapiro might and flee thus ties the children be a take that there must proposition parent of depriving other reasonable re- justify interest compelling state to depriving the children of visitation and right of of the constitutional striction love, affection, agree the children. parental support, about visitation of companionship to guidance and found it The trial court had therefore they were entitled. spell necessary very to out a detailed a plaintiff that the schedule of This was sched-

Finally, complains re- visitation. overly obviously practical was and that the striction broad ule that would not be only impose could the least restric- parties Court operable if the lived more than satisfy necessary tive measures to It if apart. was uncertain miles compelling Accepting, state interest. parties change might when either of holding, deciding or such place their of residence. It uncer- was proposition is true the decree herein any tain such as to where new residence passes constitutional muster. The word- might be. these circumstances Under ing of the trial court’s decree does not would the trial court have no information plaintiff’s right restrict travel for tem- of prac- concerning financial means porary purposes vacation, such as busi- be in- tical travel that would necessities ness or visitation of relatives. Under the accomplish There- volved to visitation. trial plaintiff court’s decree would be fore, plaintiff proceed to as contends at perfectly liberty to travel she saw required court to would have the trial fit taking either the children with her or prepare virtually an infinite number of leaving at them their residence Idaho. possible depending upon visitation orders herself liberty Plaintiff would at be to court variables. Since the trial change place her of residence without would sheer proceeding upon have been permission or order of the Court at speculation, trial court’s decision time saw she fit if she should decide that require parties to to court come back it was not necessary that the children change at the time of a residence reside with her. only restriction the sought by far is the better course imposed trial court place was that the action. residence changed children not be It is of this Court the conclusion beyond point to a a radius of 100 miles requiring parties the restriction from Coeur d’Alene without prior changing the seek a before Court order Court order. place of the children of residence in the Plaintiff contends that absence compelling based state interest upon a finding place of a that the removal with the justifying constitu- interference prejudice residence would the chil- free travel and right tional its rights dren’s or welfare the Court had no arbitrary, capricious or terms was not right prohibit parent the custodial It is unduly therefore af- restrictive. removing from children wherever firmed. they might wish. It that the trial is true view, In addition to district finding no such court’s express made significant we believe it is However, finding implicit fact. such a is note that the magistrate did not flatly prohibit ruling par- Court’s conclusions and ties from supported moving amply more the evidence than 100 miles from Coeur record. d’Alene. The magistrate simply re- quired that such a move be plaintiff authorized Finally, that it would contends “prior court order.” The purpose have been less restrictive and therefore manifest of this requirement trial was to that the court should have estab- enable impact assess the of a proposed or more different schedules of move lished two upon children, depending parties upon visitation the distance and to However, order, enter parties apart. might live whatever if any, protect needed situation need be con- realities inter- children’s best regard. As the ests sidered in record and to minimize the adverse effect demonstrates, upon amply these had parties’ custodial and visitation way in any amicably rights. able to not been imposing hered to its earlier conclusion process. due

b. Procedural the motion residency and denied restriction resi Next the wife contends regard amend. we conclude In this magis imposed by the dency limitation was magistrate did not err. parties advance notice to the trate without Next, magistrate that issue. considered opportunity to be heard on or an sup at trial allow her to disagree. request The evidence wife’s alternative We —to magistrate’s finding that there more ports the reside than from Coeur 100 miles might upon predetermined move parties was an “indication” conditions—as d’Alene light of area. In to modify from the Coeur d’Alene He refused petition a decree. parties moving issue, prior conduct of the testimony entertain on that to state we believe about from state request, holding alternative that denied the surprise that the as no should have come application premature was because a resi imposing would consider trial court yet or decree been en- had no determining the custo dency restriction Although decree was thereafter tered. determination, noted, This dy issue. hearing days following the entered —two authority clearly within was wife motion amend—the on the wife’s § Moreover, 32-717. I.C. court under request modify her renew did not residency limitation an response to appeal her to the decree, filed rather but in its memorandum by the court nounced Considering all of these cir- court. district decision, the divorce decree was and before cumstances, magistrate’s that we hold entered, wife moved to amend “the that wife rulings were correct of Law Findings Fact and Conclusions process by due procedural deprived not by Opinion” in the Memorandum embodied residency restriction the inclusion of the restriction, deleting the the divorce decree. permitting her to an order alternative for 100 miles from Coeur more than reside Ill reasonable, compliance with “upon d’Alene raised on this the issues We address next imposed predetermined court specific and by the district regarding disposition appeal on her hearing A was held conditions.” court, exercising original jurisdiction, motion, being present. with the wife appeal during the by motion matters raised hearing, discuss At the outset of magistrate division. from the stipulated magistrate’s memoran- by the husband. raised first the issues adverse findings of two dum decision would constitute appeals from only husband The first fact and of law in the case court. conclusions rulings by the district because, time, to modi- findings husband until that no formal motion concerns changing custody yet had entered. With conclusions been decree fy the divorce proceed- wife to the hus- accomplished, the court then from the the children motion. The wife to collection of the wife’s relates hear The second band. ed present support. additional tes- and child permission sought past due already had been beyond timony Change custody. a. to hear court refused at trial.

given ruled on the testimony, additional The decree of divorce in this case following basis. motion, on the wife’s August was entered 11,1978. August seeking On wife’s treated First, order, Georgia the wife moved residency restriction request to delete They the children with her. of law. took conclusion to a “objection” as an throughout proceedings. there court’s lived these agreed with counsel The wife’s September filed his re- the husband first characterization, “the stating that magistrate’s from the is- notice only to in the motion is—relates quest ap January while this judgment. testimony should law and no sues of ____” successfully peal pending, the husband score, ad- The court on that heard (c)In prevailed Georgia inconven- determining a court in if it an the state forum, if ient it adopt the Ida- the court shall consider accept, and “domesticate” is in another the interest of the child that ho as a judgment and divorce decree of pur- state jurisdiction. assume For Georgia Proceedings were judgment. pose may take into account the follow- both Georgia thereafter held in wherein ing factors, among others: parties sought holding the other in orders (1) If recently another state is or judg- of the contempt court for violation state; home child’s also re- ment decree. The husband (2) If another state custody in con- quested change child Geor- a closer a family nection with child and his or gia, which was denied. with the child and one or of the more Georgia court refused to Because contestants; decree, the then modify the husband filed a (3) If concerning evidence substantial requesting Idaho motion in care, present pro- child’s future change custody. below The dis- tection, training, personal relation- request. trict court denied the husband’s ships readily in an- is more available The court concluded that under the Uni- state; other Act, Custody form Child Jurisdiction I.C. (4) If agreed on an- § § through 32-1126, 32-1101 Idaho was appropri- other forum which is no less longer no the convenient forum consider ate; and questions custody of the children. The (5) jurisdiction by If the exercise of a that, court held courts because the of Geor- state of this would contravene gia the invitation of the husband—had —at purposes stated in section jurisdiction by adopting assumed the Idaho 32-1101, Idaho Code. Georgia judgment, and be- § purposes, referred to in I.C. 32- cause children in Georgia then resided 1107(c)(5),are to: mother, with Georgia their the courts of (1) jurisdictional Avoid competition and would be convenient forum for con- conflict courts of other states in sidering the interests and welfare of the custody matters of child which have in children. The court noted also that past shifting resulted of chil- Idaho; longer husband no resided in he had dren from state state with harmful Spokane, Washington. become a resident of well-being; effects on their § 32-1107, Idaho part Code of the Uni- (2) cooperation Promote with the courts Act, Custody form Child Jurisdiction con- custody of other states to the end that a guidelines tains for deciding juris- whether decree is rendered in that which state custody diction be should declined cases. can best the case in interest decide provides: It child; (a) jurisdiction A court which has un- (3) litigation concerning Assure that chapter der this make initial or custody place ordinarily of child take may modification decree decline to exer- state with and his child jurisdiction any cise its before time mak- family closest have the connection and ing a decree if it it is finds significant concerning where evidence his inconvenient forum make a care, protection, training, personal determination under the circumstances available, relationships readily is most case that a court of another and that courts this state decline the state more appropriate is a forum. jurisdiction exercise of when the child (b) family and his have a finding A closer connection of inconvenient forum state; with another may upon made own the court’s mo- upon (4) tion party motion of a or a Discourage continuing controversies guardian representative ad litem or other over interest greater stability of the child. of home environment family relationships tinuing jurisdiction juris- original and of secure because child; consistently pro- diction was made the with (28 visions of U.S.C. section (5) Deter abductions and other unilateral § 1738A(d))and the the resi- state remains removals of children undertaken to ob- the child Be- dence of or contestant. awards; tain custody Georgia acquired state of cause the had (6) relitigation custody Avoid of deci- case, over the in this jurisdiction sions of other states in this state insofar in finding that no other tests set forth and feasible; as Act Kidnapping the Parental Prevention (7) custody of Facilitate the enforcement met, mod- were refused to states; decrees of other provisions of ify custody the decree. the (8) expand exchange Promote and the of the court’s determination. uphold We and forms of information other mutual courts of this assistance between the state of other states and those concerned alimony and b. accrued Collection of child; with the same and support. child (9) Make uniform the law of those states de- Following entry judgment and which enact it. to vol- cree the husband refused of divorce grant declining its decision the hus- support pay alimony the and child untarily request change custody,

band’s for the obtained writs as The wife then ordered. district stated reasons consistent due, execution, came as each amount §§ the in guidelines with I.C. 32-1107 and military re- garnished and the husband’s 32-1101. court considered We believe the argu- According the tirement benefits. all relevant factors. affirm its decision on this parties presented the to us ments of jurisdiction proceedings decline over appeal, proceeds those executions change custody of the children. attorney. wife’s were turned over to the fee, by agree- portion He for his retained Moreover, the also district court wife, the bal- remitted ment with application considered Parental court, the husband her. In district ance to 1980, Kidnapping Prevention Act of action, prohibit such an order moved for 1738A, in so U.S.C. far as it relates to ex- contending that his benefits should be modification of decrees. That law Upon consideration empt execution. from provides modify any that no state shall request, the district court the husband’s child determination of another requirement, alimony based terminated jurisdiction state unless the court has change par- upon a of circumstances of (1) one of met: six- five other tests are Also, wife ties. because the had been immediately residency month child contempt of court both request change of custo found preceding the (2) jurisdic magistrate in Idaho and a court Geor- state have dy; no other would chil- gia result of her removal of the and it is as a tion because of dren Coeur d’Alene violation of interest of the child assume from the best decree, ordered divorce the district court because the child and one con jurisdiction further of execution would significant with the no writs connection testant state; (3) past collect either due present is issue to physically the child support accruing in support or child or mis state and has been abandoned abused; (4) purged herself of the future until the wife or no other state treated contempt.2 other- The district court has declined to jurisdiction or another state in the wise found no error executions on the basis of non- jurisdiction exercise forum; military retirement benefits. (5) con- the husband’s the court has convenient allowing subsequent appealed order the wife to obtain either The wife has not from 2. sup- terminating alimony writs of execution collect child from the order further port order Also, alimony, upon past posting due noted prohibiting further executions. opinion, sum of the court. district court entered earlier in this ?300 prop- not military retirement benefits is appeal the still maintains his On husband § was en- improper. process execution er under 10 U.S.C. questions. he four by Congress district court raised in 1982 while this acted First, improper pending. he contended was Sec- from the district court than county to utilize a constable rather part the Uniformed Services tion 1408 process sheriff the writs of execu- adopted to Spouses Protection Act Former Second, argued levying tion. he officer deci- inequities created alleviate authority property had no to execute on McCarty, 453 U.S. McCarty sion in (the benefits) military retirement outside of (dis- (1981) 101 69 L.Ed.2d 589 S.Ct. County. that Kootenai Next he asserted opinion). supra in Part IC of this cussed military federal insulates retirement law payment 1408 the of mili- Section directs pay Finally, he it from execution. claimed member’s tary retirement benefits to the attorney was to improper the wife’s spouse spouse compliance or former money receive due to the wife for a “final” court order. 10 U.S.C. support. or child He that con- insisted the § 1408(a)(2) (d)(1). ar- The husband the over money stable should have turned as the case is gues long that so instant to the clerk the who then should magistrate’s the decree pending appeal, on directly to wife. forwarded the pay ordering the husband to of divorce to support is not a “final” order which child The the district court answered may be military his retirement benefits The husband’s contentions as follows. subjected. § I.C. al determined that 31-3002 use process lowed the to constables is in position believe the husband’s We writs of execution. The concluded does not error. The decree this case military that pay federal retirement was purport any to make distribution or division subject support to execution for military of the husband’s retirement bene- levy pay, alimony, and that on that Neither the decree fits. does order occurring was County, outside Kootenai support the child satisfied from those be improper. agree. not We 42 See U.S.C. simply requires benefits. The order §§ 659(a) (b). The court further held it pay support, desig- to husband improper was not unlawful or con for the payment. nating source of We believe stable to remit the amounts collected on applies only when a trial that section unpaid attorney. judgment to the wife’s judge specifically ordered that child The court stated: support paid must from retired The constable has each case made spouse’s pension e.g., In account. See re complete full and return to the Court Wood, Marriage .App. 66 Or money showing the amount of he collect- order, P.2d 338 Absent such an ed, fees net the deduction of his and the merely are retirement benefits another as- paid attorney amount over plaintiff’s may payment to for set which be looked unpaid judgment. for satisfaction of the support. hold that benefits those When speak the statutes of a return execution, the cir- are not immune from they is what mean. It does not mean case, section cumstances of this under physically surrendering money 1408. Court but rather filing, as has done been here, report of also frames the Sheriff’s or Con- The husband appeal: stable’s actions and the net following result issue on there- pertains as it so far satisfaction attorney for the Plaintiff have Does an the officer was directed right garnishment pro- to exercise collect. ceedings for the benefit of minor children garnishment proceedings husband makes an those addi when argument posed payment tional not provide to be made to upon attorney? court. He contends that execution initiating af- tempt proceeding because we discern argument From his on this issue or appellant allege adamantly opposed to fidavit failed that the husband is sup- served with attorney his had been attorney being paid for his ser- the wife’s (which appellant support. port order money intended as child vices with he, violated) having However, charged with this to be a matter of we believe knowledge of appellant, had actual the wife and her private contract between ruled that support order. The Court attorney simply agent-attorney. juris- to vest allegation was “essential” judgment due the wife. collecting unpaid contempt proceeding in the position legally diction over is in no The husband further Supreme Court with, lower court. The that relation- question, or interfere “[wjhere the affidavit Moreover, noted that purpose [com- ship. because § contempt proceeding] fails pay- mencing the 32-710A, providing support I.C. facts, however, clerk, allege all essential material through ments to be made the court proof cured cannot be such deficiencies enforcement for the benefit is to facilitate omitted], hearing, supplied at obligee, we hold that error [citations court’s own judicial notice of the to the remitting directly the constable at 500. at 428 P.2d record.” 91 Idaho is harmless. obligee’s agent in this case further the cause for The remanded Court court’s determina- uphold the district “including leave to amend proceedings concerning writs of tion of issues affidavit.” Id. execution. filed the affidavits We have reviewed IV contempt husband to commence rescis Finally, the wife asks for in this case. Those against the wife action holding of an order of the sion upon the allege service affidavits fail violating the 100 mile contempt her in attorney of the divorce upon her wife or Part of in the divorce decree. restriction charged with vio- with which she is decree regard in this is the same as argument her allege that lating. Nor do the affidavits cross-appeal from the on her

that raised de- knowledge of said had actual the wife a re that such magistrate’s judgment, i.e. Jones, are constrained we cree. Under have con unconstitutional. We striction is acquire did not hold that was not uncon that this restriction cluded guilty of adjudge the wife jurisdiction to However, argues the wife also stitutional. violating the residen- contempt of court for jurisdic magistrate was without It follows that cy in the decree. restriction be contempt of court tion to hold her affirming court erred the district the husband—which the affidavit of cause there- contempt order. We magistrate’s contempt proceeding commenced contempt but remand —fails order fore vacate the di served with to state that she was further the district court for this cause to knowledge of or had actual vorce decree amend the including leave to proceedings, in the set forth restriction missing initiating supply affidavits that such affirma decree. She contends Jones, supra. allegation. essential allegation necessary to vest the trial tive is of the district summary, the order contempt jurisdiction to hear the and decree upholding Jones, Idaho proceeding. See Jones divorce, The orders is affirmed. (1967) 428 P.2d 497 and Bandelin v. cus- refusing modify child district court Quinlan, 94 Idaho 499 P.2d 557 clarifying collection tody Jones, appellant had been ad- The order affirmed. support are contempt failing of court for judged contempt citation refusing to set aside the ordered in support as a divorce pay child reversed, contempt order of the wife Supreme Court reversed the Our decree. No and the cause is remanded. is vacated contempt. order of The court’s district appeal. attorney or costs awarded on fees court had ac- held that Court SWANSTROM, J., concurring specially. entertain the con- jurisdiction to quired no appeal to this long since their cut ties with the State of Idaho. Ex-

cept for this they have chosen

litigate their more disputes recent in anoth-

er state far removed from Idaho. I would

suggest remand notwithstanding the that — Jones —we should not feel constrained

remand for purpose relitigating

question contempt, nor a six-year-old

should the as a trial remand our view

mandate question. to reconsider the

husband to make opportunity had one fair where case see I cannot contempt. party would either rights substantial judge adversely

now if the trial be affected further liti-

should entertain decide not to

gation on issue.

691 P.2d 787 EQUIPMENT RIVER

SNAKE COMPA

NY, Corporation, Idaho Plaintiff

Counterdefendant, Cross Claimant-Re

spondent,

First American Title Plaintiff,

Company,

Marion W. CHRISTENSEN and Elaine

Christensen, wife, husband and Defend Party

ants-Counter Claimants-Third

Plaintiffs-Appellants, Cooperative Associations, Inc.,

Madison Corporation, al.,

an Idaho et

Defendants-Respondents.

No. 14275. Appeals

Court of of Idaho.

Nov. 1984.

Rehearing Denied Dec. 1984.

Petitions for Review Denied 15, 1985.

March

Case Details

Case Name: Ziegler v. Ziegler

Court Name: Idaho Court of Appeals

Date Published: Jan 31, 1985

Citation: 691 P.2d 773

Docket Number: 14464

Court Abbreviation: Idaho Ct. App.