dissenting.
Appellant’s and respondent’s briefs were filed by August 9, 1978. These briefs represent an outlay of time and effort which costwise to clients would have to be in the neighborhood of not less than $4,000. Appellant’s requested relief was that we reverse the appellate decision of the district court and reinstate the prior determination of the magistrate. Appellant argues in its brief that the magistrate’s findings and conclusions are supported, hence binding on the appellate district court, and the magistrate should have been affirmed. Appellant points to alleged error by the district court in its characterization of real property which had been purchased with community funds. Respondent’s brief argues those issues, and raises no additional issue. Respondent made no suggestion that the district court’s appellate determination was not appealable. The parties waited out their turn for oral argument, and were notified on December 7, 1979, that they would be heard on January 8,1980, twenty months after the filing of the appeal.
Oral argument was heard as scheduled. However, after it was scheduled, three members of the Court, sua sponte, raised a question of the appealability of the district court decision to this Court. The parties were requested to invest additional time and expense into submitting briefs on that question — never raised by them as an issue. I voted against the Court’s raising the issue on the basis that we did not lack jurisdiction to hear the appeal. Nothing which I see in the Court’s opinion convinces me in the least that the appeal should be dismissed.
On the contrary, the discussion of the applicable rules contained in the briefs of both parties buttress my own earlier conclusion, which I thought rather basic and readily reached.
The Court’s opinion derails in observing “that if the district court had only ordered a trial de novo, such an order would not have been appealable,” and from there invents “the problem in this case that the district court judge also undertook an appellate review.” The Court’s opinion has gotten the cart ahead of the horse. The district court judge made an appellate review, rendered an appellate opinion, and reversed the decision of the magistrate. This is not a situation where the district court, instead of an appellate review, opted instead to enter upon a trial de novo.
The appellate review it conducted was in all respects the same as the appellate review this Court makes of district court decisions. Just like this Court, the district court, on review of the record, and on its view of the proceeding below, will affirm, or affirm as modified, or reverse and remand. I.C. § 1-2213 so provides. If the appellate district court does not direct a dismissal on the remand, it will order a new trial, or at least further proceedings consonant with the opinion. As is the procedure in this Court, where it reverses, it will direct the ensuing procedure.
Here, after making its appellate review, the district court did reverse, and did order a new trial. This is entirely distinct from the de novo new trial which the district court might opt to grant when the appeal from magistrate first reaches him. At that point in time, according to this Court’s rules — not the statute — the district court can decline to make an appellate review, and can choose to set the case for a trial de novo in district court.
*277The problem perplexing a majority of the Court, entirely of its own making, seems to be in the fact that the district court designated itself as the court before whom the new trial would take place. For my part I am entirely at a loss to see how the district judge’s appellate decision became not appealable to this Court because in reversing (which would be appealable) he added that there would be a new trial (which doesn’t in the least alter the main premise of a reversal — something has to be directed), and added that the new trial ordered would be in district court (said by the majority to make the decision reversing not appealable).
That a district court (district judge) in Idaho has jurisdiction and authority to try any divorce action filed in district court is beyond dispute. Magistrates do have the authority to try divorce actions, where such jurisdiction has been conferred upon them, but that does not abridge the concurrent jurisdiction of the district courts. Here the district court, after appellate review and after reaching its decision to reverse, ruled:
“Under the circumstances, and in the interest of justice, this Court will exercise its statutory discretion and grant a trial de novo in district court.”
The words de novo are mere surplusage, as any new trial is a trial de novo —but the new trial here clearly followed appellate reversal, and, as above pointed out, was not at all the trial de novo contemplated where the district court initially must decide whether to either retry the case or conduct an appellate review instead. The words “and in the interest of justice” clearly demonstrate that court’s view that these litigants should not be put to a second trial in magistrate court, with perhaps yet another appeal, and perhaps another reversal, and another appeal — ad infinitum. To his phrase, I would add, and “in the interests of judicial administration and dwindling judicial resources.” That which I wrote in Revello v. Revello, 100 Idaho 829, 606 P.2d 933 (1979), has even stronger application here where there is not the confusion of a supposed collateral attack in a district court on a magistrate’s order entered in that same district court. On reflection, and with the benefit of the additional briefing in Revello which we received from both parties on the petition for rehearing (denied without opinion), and accepting the Court’s opinion in that case as an illustration of where we are after ten years of judicial reform, I am brought to wonder if the time has not come to make a considered reevaluation. Be that as it may, I cannot help but worry that the bench and bar alike will find the Court’s interpretation of its own rules and the dismissal of this appeal more objectionable and .unwarranted than the other sua sponte dismissal of the Revello appeal.
In essence, what the Court holds today— totally unsubstantiated on a well documented record — is that the district judge simply did not know what he was doing. The district judge is being told that he did not make an appellate review,1 but opted in*278stead for a trial de novo, which he must now conduct, after which any dissatisfied party may then appeal to this Court.
Back of it all, the entire futility of the Court’s opinion is found in its play on the language the district court used in reversing. The Court seizes upon the words “trial de novo ” as grounds for nullifying the appellate review and reversal which the district court made. As appellant points out, once the magistrate decision was reversed, ergo, there was no magistrate decision. The appellant was clearly entitled to come to this Court, as it did, and contend here, as it has, that the district court’s appellate decision to reverse was in error. If appellant prevails in this Court, the decision of the magistrate will be reinstated. In that event, there will not be any second trial in any court. So simple it is, and the Court’s big problem, wholly self-manufactured, evaporates. If this Court affirms the district court’s reversal of the magistrate, then and then only it will be time for the parties to consider whether or not either of them will make some appropriate challenge of a district court’s (district judge’s) jurisdiction to try a divorce action. And, in that event the attorneys involved will necessarily consider the advisability of informing their clients that it is more desirable to go back to magistrate court, facing two appeals, than it is to be given a district court determination with only one appeal.
*279I see no merit whatever to the Court’s facile reasoning that the judge of the district court did not make an appellate review. And, as plain as the proverbial “nose on Dooley’s face,” the magistrate’s decision was reversed, and a new trial ordered. Even in the absence of the concluding language of I.C. § 1-2213, a judge of a district court has jurisdiction to try a divorce action. But the language of the statute precludes all argument.
The Idaho Constitution, Art. 5, § 13, has placed the power in the legislature to “provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all of the courts below the Supreme Court . . . .” Acting under the mandate of that article, the legislature provided that appellate review of magistrate decisions would be by district court judges, who would review the appeal record and affirm, affirm as modified, reverse, or reverse and remand for a new trial, or reverse and remand with special instructions. I.C. § 1-2213.
In obvious recognition that a district court judge’s jurisdiction is equal to and greater than the jurisdiction of a magistrate, the legislature further provided that the district court on reversal “may direct that the case be tried de novo before him.” 1.C. § 1-2213. In 1976 the Court enacted a rule, 83(u), which purports to add to the statute a provision that appeals to district court judges would be initially placed into two categories: those where the district judge was impliedly2 required to make an ex parte determination that he would not make the appellate review mandated by the statute (Rule 83(u)(2) “involving a trial de novo”), or he would do so (Rule 83(u)(l), “not involving a trial de novo”).
What good has been achieved by the promulgation of the rules is hard to visualize.
For my part, I am simply unable to understand what the Court hoped to gain— other than confusion — in its attempt to improve upon the statute by which the legislature properly outlined an efficient method of appeals from magistrate courts. Lawyer magistrates are regularly hearing divorce actions throughout the state. Lawyer magistrates are regularly being appointed to district judgeships, and many who are not moving up nevertheless have the qualifications to do so, and are being nominated for judgeships on a regular basis. At one time the entire bar of the two northernmost counties by resolution called for the abolition of the caste system of district judges and lawyer magistrates — in recognition of their equal qualifications and closing areas of jurisdiction.
I am unable to see why an appellate review which a district judge makes of a magistrate decision should differ from that set by legislative action. But more importantly, I see a district judge here following the statute explicitly, and where he did not make the election to initially grant a new trial, under the rules of this Court, I am distraught at today’s turn of events.
In closing mention should also be made that there was no call for the Court’s in-depth discussion of Judge Newhouse’s utilization of counsel’s services in preparing findings and conclusions to be entered — if approved — in magistrate court. It has been well stated that the better practice is for a trial court to make its own, obtaining submitted findings from both counsel, but it has also been stated that counsel-prepared findings, once approved and signed, are the findings of the court. Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977). Moreover, the opinion in that case, while it was handed down in late February of 1977, was not published and distributed in Volume 98 of the Idaho Reports until about the time that Judge Newhouse used counsel’s services for the drafting of findings.
That, of course, is a small matter as compared to the action the Court takes in turning down the appeal from a district court appellate decision which is clearly appealable, but held not to be on the grounds that *280the district judge, acting within his jurisdiction and the guidance of the statute — and in the interests of conserving judicial resources and with an eye to the rights of litigants, stated that the new trial would be in district court. The sublime irony of it all is that the district court appellate opinion held only that the case would not be relegated back down to magistrate court, from which depth it might work its way up again, and, while the case languished in this Court for almost two years, the magistrate who first decided the case was elevated to the district court bench, thus providing a choice of not just one, but two district judges, who already had considerable time invested in getting a grasp on the basis of the controversy. Then, too, as mentioned above, there is always the possibility that this Court, if it deigned to hear the appeal, might find error on the part of the district judge in reversing the magistrate decision, and then there wouldn’t be any new trial at all!
. In fairness to the district judge and those who would prefer to know whether in fact the 'district judge did review the magistrate’s decision, I deem it mete to set forth the pertinent portion of his appellate decision:
“Here the conclusion regarding the subject property, reached by the magistrate in his memorandum decision, is not supported by substantial evidence.
“It is clear that the status of property acquired during marriage is determined by the source of the funds with which it is purchased. Cargill v. Hancock, 92 Idaho 460, 444 P.2d 421, Stanger v. Stanger, 98 Idaho 725, 571 P.2d 1126. In Cargill both the husband and wife had signed a contract of purchase for real property but the property was nevertheless held to be the husband’s separate property since all payments had been made out of his separate funds. In Stanger only the husband was named as grantee in a deed, yet the property was held to be community to the extent that the payments therefor were made with community funds. It appears therefore that it is not controlling in whose name or names a deed, or contract of purchase, appears; but rather the actual nature of the property depends upon the character of the funds used to pay for the property.
“Here, the appellant testified that he made all of the payments on the real property in question. (Transcript, page 12, line 13 through page 13, line 7) He also testified that the source of the payments he made was from his savings account and his social security pension. (Transcript, page 13 lines 15 *278through 20; page 32, line 17 through page 33, line 15) He also testified that the source of his savings account was the proceeds of a sale of a wheel alignment business owned by him, in February, 1972. (Transcript, page 15 lines 7 through 22; page 4 lines 8 through 25; page 5, lines 1 through 21). None of this testimony was disputed by the respondent. The Appellant acquired his one-half interest in the business at the time of the first divorce in February, 1972. When Appellant and Respondent married in June of 1972, the one-half interest remained his separate property. l.C. § 32-903. And when the business was finally sold in February, 1973, Appellant’s one-half share of the proceeds became his separate property under the tracing doctrine. Stahl v. Stahl, 91 Idaho 794, 430 P.2d 685. Since the savings came from the sale proceeds, the savings were also Appellant’s separate property and it follows that the real property in question is Appellant’s separate property at least to the extent that the payments made on the house were made from Appellant’s savings account.
“The character of the Social Security pension is a more ticklish question. At first blush, the doctrine of Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53, would appear to require that at least a portion of the pension be community property since the Appellant worked and presumably paid Social Security taxes for the first eight months of the marriage. As in Ramsey, however, the question must be asked whether it would contravene Federal law for this court to so rule. It is clear from the Social Security Act that Congress has given careful consideration to the special pension problems a divorced wife faces. For example, Congress has explicitly extended old-age benefits to elderly women who are divorced after more than 20 years of marriage and are unmarried at the time they apply for benefits. 42 U.S.C.A. §§ 402(b), 416(d). More importantly, Congress has provided that the payment of benefits to a divorced wife should not reduce the husband’s benefits, which are to remain the same regardless of whether the divorced wife receives benefits or not. 42 U.S.C.A. § 403(a)(3). Yet a reduction in the husband’s benefits is exactly what would result if this court were to hold that the Appellant’s Social Security pension is community property. The only case which has addressed the question of this potential conflict between the law of community property and the Social Security Act is the case of In re Marriage of Nizenkoff, 65 Cal.App.3d 136, 135 Cal.Rptr. 189 (1977). In a well-written and persuasive opinion, the California Court of Appeal held that it wouldbe unconstitutional to treat a Social Security pension as community property. It follows that in the case at bar, the Appellant’s Social Security pension is his separate property.
“Since both the Appellant’s savings and his pension were his separate property, and real property in question was paid for entirely by his separate property, this property itself, consequently, would also be his separate property. Cargill v. Hancock, 92 Idaho 460, 444 P.2d 421; Stanger v. Stanger, 98 Idaho 725, 571 P.2d 1126.
n “After reviewing the entire record in this matter, and the applicable law, it appears that determinations of the magistrate regarding the nature of the property in question, and the resultant disposition thereof by that court, was in error as not being supported by substantial evidence and not in conformity with applicable law. The magistrate’s decision is therefore reversed.
“Under the circumstances, and in the interest of justice, this Court will exercise its statutory discretion and grant a trial de novo in district court. I.C. 1-2213.”
. In 1979, by the provisions of a new Rule 83(j), the district court judge was expressly allowed 21 days to make this decision, and enter and serve an appropriate order.