In August, 1937, this case was originally tried and decree was entered in September, denying plaintiff a divorce and awarding defendant (respondent here) $25 per month and other property allowances and costs. On appeal the judgment was reversed December 16, 1938, and the cause remanded for further proceedings. By the court's decision on rehearing, February 8, 1939, it was ordered that the trial court set aside its previous decree "and require solely a proper, adequate and protected monthly allowance for defendant and her minor children." (Radermacher v. Radermacher, 59 Idaho 716, 721,87 P.2d 461.) Upon further hearing in the lower court, an affidavit was filed by appellant, showing various sums of money received by respondent, to which the court's attention was called in making allowance for monthly payments. Objections to entry of decree were also filed, stating that the decree by its terms required plaintiff (appellant) to pay amounts in *Page 277 excess of the amount fixed by this court as a proper award. May 31, 1939, the trial court entered its amended decree, providing in part as set forth in (Radermacher v. Sutphen), 60 Idaho 529,92 P.2d 1070, 1073 and 1074, to which reference is here made.
June 3, 1939, plaintiff applied to this court for a writ of mandate requiring the district judge to enter a judgment in accordance with plaintiff's construction of the decision of this court. Alternative writ issued June 6th and argument was heard on demurrer to the application for the writ June 28th; and the decision of the court was filed July 20th, sustaining the demurrer and ordering that the writ be quashed. (Radermacher v. Sutphen, 60 Idaho 529, 92 P.2d 1071.) July 28th plaintiff appealed from the judgment and decree in the lower court May 31st.
The fact, that appellant could not obtain a divorce and respondent did not want or seek a divorce, leaves the parties each obligated to the other under all the legal duties and liabilities of the marriage contract, and each entitled to his and her proper legal status and rights in the home as husband and wife; and likewise with reference to the possession, management, and control of the community property and the separate property of each. In this state of the case, the court had no power to oust either from the home selected and furnished by the husband. It was error for the court to decree the "exclusive use and benefit" of the home and other property to the defendant. It was likewise error for the court to decree the defendant a divorce from bed and board (a mensa et thoro) since such decrees are not authorized or allowed in this state; (secs. 31-601 and 31-602, I. C. A.) and that is clearly the effect of the part of the decree reading: "That the defendantFreda Radermacher be and she is entitled to live separate andapart from the plaintiff." If the husband returns to his home and provides for his family in a manner in keeping with his financial and physical ability to do, he should be no longer under the necessity of making separate maintenance payments.
A fallacy, which seems to be advanced as law by the majority opinion, is that recognizing the right of the court to enter *Page 278 a decree adjudging that the defendant be, and is, entitled tolive separate and apart from her husband. Such a decree relieves the party, in whose favor it is made, from any further duties under the marital contract. A decree that one spouse "is entitled to live separate and apart from" the other, operates in the future and relieves such spouse from all marital duties and obligations and sets aside the marital contract as to that spouse; whereas a decree of divorce acts upon facts already transpired and cancels an existing contract. It is in the latter case and there only, that the court acquires jurisdiction to divide or set aside property to the wife. (Benson v. District Court, 57 Idaho 85, 93, 62 P.2d 108.)
The law and public policy as well looks with favor upon and seeks to encourage reconciliation between husband and wife and members of the family. That result cannot be obtained by prohibiting either husband or wife from reforming or returning to the family or living in the family residence.
Now, under a decree and judgment of this kind, the wife may live indefinitely separate and apart from her husband, no matter how circumspectly he may live or what overtures he may make for reconciliation; and still she could not be charged with desertion, for the very good reason that she would be protected by the decree authorizing her "to live separate and apart from her husband." Indeed, the majority opinion admits that under such a decree, the wife cannot be charged with desertion when living apart from her husband. It says:
"It is true, Idaho does not recognize the right to a divorcefrom bed and board, but it does recognize the right to separate maintenance, as heretofore pointed out. The word 'separate', used in connection with 'maintenance' indicates that it is the right of the wife to be maintained by her husband while living with or apart from him. Our remedy of separate maintenance, while not identical with divorce a mensa et thoro, is similar to it in some respects and may be used in place of it. As we understand divorce a mensa et thoro, it was a decree forbiddingthe parties to a marriage to live and cohabit together, but did not dissolve the bonds of matrimony. *Page 279
"Where a decree of separate maintenance has been granted, as in this case, the parties are not forbidden to live and cohabit together, and they may lawfully resume the marital relation, by mutual consent, without first having the decree vacated. In the meantime, and until they do so agree, the erring husband must contribute to the support of his family and is deprived, because of his misconduct, of his right to cohabit with his wife. He cannot maintain a suit for divorce, on the ground ofwilful desertion, because of her living apart from him pursuantto a decree of separate maintenance. Such a decree does notdissolve the bonds of matrimony. It continues in force the dutyof the husband to support his family while some of theprivileges of matrimony are denied him." (Italics supplied.)
Where a divorce has been denied, as in this case, and the court has made an award in favor of the wife, for the support of herself and children, the entry of the order does not terminate the jurisdiction which continues to adhere until reconciliation has been accomplished or a divorce or death has terminated the marital relation. (Sauvageau v. Sauvageau,59 Idaho 190, 81 P.2d 731.)
In Bedal v. Sake, 10 Idaho 270, 276, 77 P. 638, 66 L.R.A. 60, this court said:
"The statute of this state only gives the court power to dispose of community property after the divorce is granted; indeed, it acquires its power from this source alone. The husband controls the community property up until the very hour of the dissolution of the marriage relations."
While another phase of the Bedal-Sake case was overruled inPeterson v. Peterson, 35 Idaho 470, 207 P. 425, the holding above quoted has never been overruled, modified, or criticized; nor has it ever been departed from since it was announced in 1904. On the contrary, the foregoing announcement in that case has been uniformly quoted, followed, and approved by this court down to the time of the writing of the present case.
In Benson v. District Court, 57 Idaho 85, 93,62 P.2d 108, the question of jurisdiction was before this court and we quoted the foregoing with approval and then said: *Page 280
"The statement, that 'the husband controls the community property up until the very hour of the dissolution of the marriage relations,' is as true today as when Bedal v. Sake was written."
In the Benson case we called attention to the distinction between the exercise of jurisdiction to dispose of the community property on granting a divorce, and the power to exercise "custody" over the property pending the divorceaction, and said:
"The power the court has exercised here is not the power of 'disposition' conferred by sec. 31-713, but is rather the power to exercise 'custody' over the property pending the action, as conferred by sec. 31-715."
We again considered this same question and adhered to the rule in Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731, citing other cases from this court. The majority opinion runs counter to the holding of all these cases. Here a divorce has been denied and the decree in that respect has become final.
In Ashton v. Ashton, 59 Idaho 408, 83 P.2d 991, thedivorce had been granted and we considered the question as to the reasonable monthly payments which should be made the wife as alimony.
There is no question raised in this case as to the soundness of the rule announced in Kohny v. Dunbar, 21 Idaho 258,121 P. 544, Ann. Cas. 1913D, 492, 39 L.R.A., N.S., 1107, defining the interest of husband and wife in the community property. That case has been the law in this state ever since it was announced. Furthermore, it also declared the husband's absolute right of "management and control of the community property" during his lifetime and until the community is dissolved by death or decree of court. Under our statute, the husband has the absolute management and control of the community property (Metropolitan Life Ins. Co. v. McClelland, 57 Idaho 139, 142,63 P.2d 657, and cases therein cited; sec. 31-913, I. C. A.). Neither the community real property nor the homestead can be sold, conveyed, or encumbered except by "deed or other instrument of conveyance," in which the husband and wife join "in executing and acknowledging." (Sec. 31-913, supra.) *Page 281
In the light of the evidence and findings, that the wife is receiving $95 a month for her services and, in addition thereto, is having the use of the residence and some of the livestock, and other personal property, while the husband is only receiving $40 per month, with board and lodging, for his services, an order requiring him to pay $40 per month toward maintenance for his wife and children is disproportionate and excessive at the present stage of the case. To my mind, it does not square up with the rule announced by this court inAshton v. Ashton, supra, to which Justice Morgan refers. I agree with him that the judgment confirming and ratifying "the expenditures made by respondent from moneys received by her from the sales of community property, is in excess of the order remanding the case" and should be vacated.
The entire judgment should be reversed and the cause remanded with instructions to the trial court to make supplemental findings, showing the present employment, earnings, and income of each of the parties and the ability and opportunity of the plaintiff to earn or acquire funds with which to make maintenance payments for the benefit of the minor children; as well as the nature of employment and the ability of defendant to earn and assist in the maintenance of the family, as indicated in the Ashton case.
Holden, J., concurs in the foregoing.