Shurtliff v. Shurtliff

BISTLINE, Justice,

specially concurring.

This appeal presents an extremely vexing and close question. There is much in the dissenting opinion of the Chief Justice with which I agree, particularly where he questions the trial judge’s award of a five-year college education to the plaintiff wife — at the defendant-husband’s expense. This award was made under the auspices of the 1980 legislature, I.C. § 32-705. Prior to that legislation becoming effective, I do not believe that there ever was a divorce case in Idaho where a trial judge would have given any consideration to such a proposition as that before us today. Justice Shepard is eminently correct in noting that there is no pretense that the situation is that of the one spouse (usually the wife) *1036endeavoring to and contributing to the other spouse’s obtaining an education, “i.e., the familiar complaint of the wife who made it possible for the husband to attend medical school.” I have been, and remain, disposed toward the view that there is nothing inherently wrong with that concept, and many courts across the country have adopted that view. However, that question usually arises and is answered in the context of considering a diploma and the ensuing license to enter into a lucrative practice as an item of community property to be considered along with all other community assets in making an equitable division and distribution.

The spousal support statute is of an entirely different ilk; hence, in this case especially, where community property is practically nil, and may as well be considered nil, what we have are two persons who exit a marriage of long duration and there are no assets available for either. The husband has, and has had for the many years, a good-paying job. It is to be much doubted that the plaintiff-wife has any interest whatever in that job, but as matters stand now, for the next five years she probably has an insurable interest in the defendant, who will be her source of support while she pursues an education which it is hoped will result in her becoming endowed with a degree in microbiology, and possibly a position where she will be compensated accordingly — and yet owe the defendant nothing in return. Nor will the defendant have any claim on her education — for the simple reason that it is not community property.

Back of it all, it is to be remembered, the husband’s management squandered away over 20 years of good income, but at the same time the plaintiff-wife — so far as we know — acquiesced in his conduct and remained with him.

Now, this may be the set of circumstances which the legislature envisioned when it enacted I.C. § 32-705. Such, however, is aught but speculation. The fact is that there is such legislation, and unless it is alleged and ruled to be unconstitutional, it govems Idaho’s judges who preside in divorce actions. In this particular case I am not persuaded that the magistrate erred in complying with the statute. His findings are before us. Those findings point to the evidence which sustains them. Hence, I do not see that we are at liberty to interfere.

Mention should also be made that our appellate review is second in time, because we are favored with an extremely careful and analytical appellate review by Judge Woodland, with myself noting only one statement with which there is some question. Judge Woodland states that the award of spousal maintenance under § 32-705 is within the discretion of the trial court and cites to two pre-1980, hence pre-§ 32-705 (1980) cases.1 I am unable to agree. It seems clear that the legislature has eliminated the discretion which trial courts formerly had in passing on alimony requests. Instead, the courts have been furnished with legislative doctrine for guidance in this area — much the same as district courts have been furnished a checklist to follow in sentencing those who are convicted of first degree murder.

. Cites for the two cases are: Glavin v. Glavin, 94 Idaho 813, 498 P.2d 1286 (1972); and Love-land v. Loveland, 91 Idaho 400, 422 P.2d 67 (1967).