concurring in part and dissenting in part.
I concur in the result reached by the Court on the issue of relief from the property settlement agreement. However, I disagree with a portion of the Court’s analysis on that issue, and I dissent from the Court’s decision on the issue of costs.
I
Judge Newhouse found that Mrs. Bodine did not rely, in fact, upon the representations made by her husband concerning the value of certain items of community property. This finding, supported by substantial (albeit disputed) evidence, is dispositive. Consequently, my colleagues need not have broached the issue of Mrs. Bodine’s right to rely upon such representations. Not only is this subject addressed unnecessarily but, I respectfully submit, the discussion harbors an error.
In purported reliance upon Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980), the Court today broadly states that despite the fiduciary relationship which exists between spouses, a wife has no right to rely upon her husband’s representations concerning the value of community property if facts pertinent to the question of value have been disclosed. The unfortunate import of such a broad rule is that the husband is free to act in bad faith by representing values which he knows to be wrong or unreasonable; and it remains for the wife, using other available information, to avert the fraud. This trivializes the concept of fiduciary duty and, in my view, is not what the Compton court intended.
The dominant concern of Compton, and of the earlier Supreme Court decision in Sande v. Sande, 83 Idaho 233, 360 P.2d 998 (1961), is an act of overreaching in derogation of the fiduciary duty owed by one spouse to the other. Such overreaching can occur on a question of value. It often happens in a marriage that one spouse acquires, and is recognized by both spouses to possess, superior knowledge concerning certain community property. Even if both spouses have access to the same information, the spouse with superior knowledge is better able to interpret the information and to determine the value of the property. I see nothing to commend a rule of law that would allow the spouse with superior knowledge to make a deliberate misrepresentation of value, intending the other spouse to rely upon it. On a question of value, no less than on any other issue, each spouse should be entitled to presume good faith on the part of the other.
I recognize, of course, that values cannot always be identified with precision. A reasonable range of values may exist. Within that range, a spouse is entitled to take a position on value favorable to himself or herself, so long as all pertinent information is disclosed. But when a spouse acts in bad faith, foisting a clearly unreasonable value upon the other spouse, I would hold that overreaching has occurred. A misrepresentation made in bad faith should not be shielded from the law of fiduciary duty by the simple expedient of treating it as a matter of mere “opinion.”
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I also respectfully disagree with my colleagues regarding the award of costs by the district court. Fees of expert witnesses (beyond the $20.00 per diem) are discretionary costs under I.R.C.P. 54(d)(1)(D). They need not be awarded to a prevailing party simply because that party has incurred them. In the exercise of his discretion, the trial judge should consider whether the expert testimony has been helpful in resolving a material issue.
Here, the fees in question were charged by appraisers who were hired by the husband to give opinions on the value of community property. Their opinions generally supported the representations made by the husband to the wife during settlement negotiations. However, Judge Newhouse expressly found that the husband knowingly had misrepresented the value of community assets. By clear implication, the judge disbelieved the testimony of the husband’s expert witnesses. The judge could not have found such discredited testimony helpful in resolving a material issue.
Indeed, Judge Newhouse rejected the positions taken by both parties in this lawsuit. He rejected the husband’s position that reasonable values had been communicated to the wife during settlement negotiations. He also rejected the wife’s position that she actually had relied upon her husband’s representations. Under these circumstances, I would deem it clear that the parties should have borne their own discretionary costs. I would hold that it was an abuse of discretion to impose upon the wife the costs of the husband’s expert witnesses, whose testimony the trial judge rejected.