concurring and dissenting:
I.
On the matter of the permanent alimony award I take my bearings from the wisdom *412of Justice Knudson who authored the Court’s opinion in Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964). Dr. Nielsen by the final decree in that case was ordered to pay $100 child support for each of two children, and ordered to pay Mrs. Nielsen $200 per month as alimony for a period of one year. Mrs. Nielsen challenged on appeal both the amount and the time limitation. A unanimous Court through Justice Knudson responded to Mrs. Nielsen’s contentions as follows:
“The portion of the court’s findings which discloses to some extent the reasoning of the court in limiting the payments to one year is as follows:
‘That the plaintiff has the intelligence and education to enable her to find and hold employment during the hours the children are in school, and the Court further finds that such employment would be to her best interest from a mental standpoint.’
“The record does indicate that many of appellant’s personal problems were a result of her remaining at home and worrying; the trial court considered that it would be to her best interest from a mental standpoint to accept employment. In considering appellant’s contention it is of significance to note that the trial court also found:
‘That the plaintiff is at present unemployed and her present physical and mental condition is not of the best, and that this has been caused in the main by defendant’s conduct and treatment of her, and as a result thereof, the plaintiff is entitled to receive, and the defendant shall pay to the plaintiff, the sum of $200.00 per month as alimony for a period of one year, beginning June 1, 1963.’
As concerns the adequacy of the amount of the allowance we disagree with appellant’s contention. We are not aware of any showing that appellant cannot provide herself and the children with appropriate maintenance with the allowances prescribed. However, under all the circumstances of this case we consider that it was error to limit the alimony payments to a period of one year. The court recognized that at the time the decree was entered appellant was not well physically or mentally. There is no showing that appellant has been able to procure employment at any time ‘during the hours the children are at school.’ These children may be adversely affected by appellant’s absence from the home while in pursuit of employment, and in view of the tender ages of said children it is important to consider what effect would result. To terminate the alimony in advance of any showing that circumstances warrant such termination would necessarily rest on speculation or conjecture.” 87 Idaho at 585-86, 394 P.2d at 629 (emphasis added).
The logic of that analysis is applicable here and persuades me that it should be controlling. Particularly, just as the Court then held that it was error to forecast a termination date of one year, so was it error on the part of the district court here to adopt a termination date of nine years. It was necessarily resting “on speculation and conjecture.” Equally speculative was the court’s forecast of the dates the alimony would be reduced.
Accepting the fact that the court saw a need for an alimony award at the time the decree was entered, it was improper to extend its duration for nine years. That provision made it imperative that defendant-husband appeal — else he would later face the plea in bar of res judicata if he sought modification at the trial court level. The law is not all that clear, perhaps, but it is certainly arguable that the alimony award was intended to be permanent for a nine years period, even though not granted in-lump sum form. The -award should have been for a monthly amount for the two years, or three at the most, which might have then been found necessary, with a proviso that there then be an automatic re-examination of Mrs. Ross’s needs. Monthly alimony at the least should have been made subject to modification on motion by either party. As stated in Nielsen, “until such time as it is shown to the court *413that [she] is no longer in need of the alimony or that circumstances and conditions of the parties warrant a modification, the payment should continue.” Id. at 586, 394 P.2d at 629. One year was there held to be too short a time without allowing for a re-evaluation of the situation, and conversely the nine year award in this case is too long. There should have been a provision for an earlier re-evaluation; without such defendant was forced to initiate this appeal.
As the Court’s opinion points out, Dr. Ross agreed to pay $2,000 monthly as alimony pendente lite — while the appeal was processed to test out, amongst other things, primarily the validity of the alimony award. The opinion as written lends itself to the inference that this was a voluntary agreement upon the part of the defendant. It certainly is true that he did agree to do it. But it is at once seen as enigmatic that he would voluntarily agree to giving his ex-wife the sum of $2,000 monthly while awaiting disposition of the appeal, and at the same time contend, as he does and has, that he should have been ordered to pay no alimony. At the present time he presumably has written forty-eight $2,000 checks to Mrs. Ross — amounting to a total of $96,000 —which is almost one-half of the total permanent alimony award. Under the rationale today adopted in the Court’s opinion, if another four years elapsed before there was a final judgment, the contention that he should not be obligated to pay any alimony would be rendered moot.
The inference to be clearly drawn from the record is that the defendant reached the agreement with the plaintiff (it was not a unilateral beneficience of an eleemosynary nature) to pay and accept the $2,000 monthly as an alternative solution to his being faced with writs of execution as every month placed him another $2,500 in debt. So viewed the agreement would in this Court be nothing more than a matter of passing interest. If the permanent alimony award is to be set aside, and a majority of the Court say that it is, the trial court would seem to be the only proper forum for resolution of the status of the $2,000 payments heretofore made. I would imagine that counsel for defendant could for quite a distance be heard objecting to any suggestion that the defendant, with whom he has counsel, had agreed to paying that much oí the permanent alimony award, and no strings attached. It appears that the parties, through counsel, worked out an agreement to avoid executions and avoid as well the cost of a supersedeas bond which, as all of the older practitioners know, makes a good premium for surety companies, and usually at no risk — but can also be a huge taxable cost if the party putting up the bond prevails on the appeal. A question arises as to how much of this is surmise on my part, or how much is inferable from the record.
The parties, both represented by able counsel, seem to me to have understood that Dr. Ross could post a supersedeas bond, and that if he did do so, Mrs. Ross would have been prevented from executing on each accruing $2,500 monthly installment. But that is not all. She would now find herself, as the non-prevailing party on appeal, assessed as taxable costs the annual premiums for the supersedeas bond, assuming that I correctly read the Court’s opinion as denying her any permanent alimony whatever. I note also that in Industrial Leasing Corp. v. Thomason, 96 Idaho 574, 532 P.2d 916 (1974), on file with the clerk of this Court, the cost bill shows that a total sum of $1,625 for two years of premiums was paid for the supersedeas bond obtained by appellants in that case. See I.C. § 41-2607; Henderson v. Cominco American, Inc., 95 Idaho 690, 518 P.2d 873 (1973).
The parties seem to have understood as well that if no bond were posted, or agreement reached in lieu of bond, and Mrs. Ross by execution process exacted $2,500 monthly from Dr. Ross, and the money judgment was later invalidated, she would have been required to make restitution, as well as pay the bond premiums. All considered, I have concluded as above that it would be better for the Court to remain aloof from concerning itself with the agreement made by the parties and the underlying premises therefore, which are better known to them and *414to the trial court. I do not intend my remarks to be taken as a prejudgment of district court resolution on the issue. Rather, I strongly believe that this Court should not now on a record sparse as to that issue decide the status of $96,000 which has been paid, or declare the obligation of Dr. Ross to continue payments until a final judgment is entered — which holding may very well have a “chilling effect” on his right to continue with litigation to an outcome which he believes to be fair and just.
The oral in-court agreement which led to the entry of the stay order in district court contained the following recitations which to my mind support the view that this Court ought not concur itself with the $96,000 payments — thereby perhaps falling into an erroneous disposition, and I quote from the minutes of the trial court:
“Mr. Miller represented to the Court that the defendant intends to immediately appeal the Court’s decisions in this matter. However, in order to avoid the necessity of repeated executions, orders, and matters of that nature, without prejudice of rights of appeal of either party, and without prejudice of raising any issue on appeal, the defendant is willing at this time to cause there to be delivered to the plaintiff, the following items of property, as set forth in the Findings of Fact on Pages 5 and 6:
Cash Value of Life Insurance $ 3,072.00
Stocks and Bonds in the amount of 23.073.00
Credit with Merrill, Lynch, Pierce, Fenner & Smith 1,386.00
Items of Fidelity Federal Savings (is in the plaintiff’s possession) 30.084.00
“Mr. Miller further represented to the Court that he is willing to stipulate, on behalf of the defendant, that the Court can make an Order that pending appeal, the defendant pay to the plaintiff, alimony, in the sum of $2,000 per month commencing with the month of April, 1978; That the sum of $3,150 which has been paid by the defendant can be applied to alimony from December, 1977, and further that defendant would ask the Court for an Order Staying Execution, providing all of these things are done by May 15, 1978.”
I believe it is safe to say that there is reason to believe the court’s order reciting that “It was further agreed defendant (Dr. Ross) would on or before May 15, 1978, commence to pay to plaintiff the sum of $2,000 a month as alimony pending appeal with the first said payment being due for the month of April, 1978,” strongly substantiates an inference that counsel for Dr. Ross was not intending his client as a voluntary donor, but rather would make such payment for the reasons stated by Mr. Miller, according to the court minutes.
The agreement leading to the order for $2,000 of alimony monthly should not be confused with the temporary alimony which may be awarded while a divorce action is pending in district court to provide the wife (who is still then a wife) with support money while the litigation process winds its way to a final decree divorcing the parties and terminating the marriage. I know of no statutory provision which entitles an ex-wife to temporary alimony. On the contrary, the prior decisions of this Court in the area of attorney’s fees following the entry of a decree make it quite clear that a woman divorced is no longer a wife.
What is for certain, however, is that the status of the monthly alimony payments made pending this appeal is not a matter properly before this Court, and the parties accordingly have not declared it as an issue, nor addressed it. Nor should we, and nor would I now other than that the Court’s opinion may on remand be argued as lending itself to the interpretation that this Court has ruled on the status of the 48 monthly $2,000 payments, making such the law of the ease and binding on remand. It should not so be. If the plaintiff is to be here held not entitled to any permanent alimony, defendant and plaintiff will then have for self-determination, or further litigation in district court, their agreement and the defendant’s right, if any, to restitution *415for payments which may be found to have not been voluntarily made. Other than that the Court in 1977 prevailed upon the legislature to repeal I.C. § 13-220, that former statute clearly suggested that restitution is in order where money has been paid under the compulsion of a threat of execution to be issued under a judgment — the judgment later having been found erroneous and that the Supreme Court itself, in reversing can direct restitution. Although in the shuffle of going from a long established code pleading to court rules, no rule counterpart to I.C. § 13-220 seems to have belched forth, the language in Radermacher v. Eckert, 63 Idaho 531, 123 P.2d 426 (1942) reads rather clearly that a district court can make restitution in the particular action on remand, or even entertain an independent action. Id. at 537, 123 P.2d at 428. Equally clear is that the general principles of unjust enrichment as stated in Corpus Juris Secundum and Am.Jur.2d recognize the right to recover payments made under a writ, or under a threat of the writ — the underlying judgment later falling. on appeal. The Court does not seem to have blessed itself with a rule which allows it to address the issue. As I say above, it should not do so where the parties obviously did not want the Court to indulge itself.
I agree that the trial court’s award of alimony should be set aside; nevertheless, keeping in mind “that the allowance of alimony and the amount thereof, are in the first instance committed to the trial court’s discretion,” Nielsen, supra, 87 Idaho at 585, 394 P.2d at 629, I would on remand direct the district court to now make the re-evaluation as to continuing need and present circumstances and conditions which in my opinion more properly would have occurred two years ago, and at the same time, with the benefit of hindsight into the plaintiff’s needs now demonstrated and accountable after four years of experience, reconsider the initial award of any alimony and the amount as well. For certain the trial judge, and other judges, may now have more guidance in this difficult area than was available in 1978 when the decree was entered.
If the alimony awarded by the final decree is to be stricken by a majority vote of this Court, and the trial judge thereby precluded from any further consideration of that issue, it does not follow that the property division should now four years later be laid open for further litigation. The trial court was entrusted by the legislature to make a just division of the property. In the absence of evidence persuading this appellate court that it did not do so, and remembering the attendant presumption of validity, I cannot agree that that issue should be reopened by this Court. At best it could authorize the trial court to do so if the trial court will concede that it interwove the issue of property disposition with the issues of alimony entitlement and amount of award. The Court’s course of conduct in striking down any alimony, and at the same time allowing Mrs. Ross to retain all sums given her in the four years, and at the same time intimating that a rehash of the property issue may give her a better yield than it did before will seem to some to be nothing short of pure mollification — which may not be good precedent.
Other than that Mrs. Ross was originally awarded alimony, the child support provision was totally inadequate, and should also be reconsidered. Perhaps it would be well to wipe the slate clean — reinstate the Ross marriage, and begin anew.
II.
IN RESPONSE TO RULE 54(b) VIEWS OF JUSTICE BAKES
As a practical matter, since the legislature gave birth to irreconcilable differences as grounds for divorce, a divorce is inevitable where sought by either spouse. For instance, observe the philosophy of this Court as expressed in Ripatti v. Ripatti, 94 Idaho 581, 583, 494 P.2d 1025, 1027 (1972), where the Court was obliged to reverse a divorce decree awarded a husband who didn’t ask for or want such relief, but nevertheless felt free to remand the case with directions practically mandating that the wife-at-fault could obtain a “no-fault *416divorce” under I.C. § 32-603(8) — which was not in effect when the divorce was granted.
Here, an entirely different situation from Ripatti, it was both parties who pleaded and prayed for a dissolution of their marriage. Their prayers were answered, and the marriage dissolved on the defendant’s motion, although the wife interposed the objection that she, not the husband, should be awarded the divorce. Hence, there are no reasons, other than spite and tactics, for prolonging the agony where grounds for divorce are pleaded by both parties, or pleaded by one party and admitted by the other. The general experience has been, to the knowledge and observation of practicing attorneys, that a laudable purpose is served by the early termination of a marriage which has deteriorated to bickering, recalcitrances, bitterness and even hatred. The general experience has been that attorneys are best able to counsel and reason with divorced clients in attempting to work out property dispositions and child custody and support agreements.
I do tend to agree that in order to be in technical compliance with the court’s rules of procedure, the finality of a decree of divorce entered on motion for partial summary judgment should be cast in stone by the entry of the usual 54(b) certificate. I would surmise that in 90% to 95% of all cases the parties would stipulate to the presentation of the divorce issue on such a motion, and would again stipulate to the entry of the order of certification, and mutually waive any right of appeal. Let me simply say that my concern here is not with those few couples, or one of them, who prefer to hang on to the other spouse either for the infliction of punishment or for other reasons which are not bona fide or legally cognizable. I see no reason for a gratuitous slap at a sound practice simply because of an obsession with rules of the court as applicable to problems which are largely self-manufactured and will only occur in an insignificant number of instances, if ever again.
A decree of divorce, whether it be certified or not, is — unlike partial final judgments in other contexts — not truly subject to revision, as intimated in the dissenting opinion. It is on this basis that I find untenable the view expressed by the dissent that this Court should hold that an uncertified partial decree does not terminate the marriage until all claims in the divorce action have'been adjudicated. I am unable to comprehend the manner in which a simple decree which dissolves a marriage would be in need of revision. Parties asking for and receiving a decree of divorce are entitled to believe that the judicial document telling them, and the world, that they are no longer married is for real and may be relied upon. To hold otherwise, as is suggested, would only serve to bring the Court into disfavor with the general public. “Why,” it will be asked, “does not this decree of divorce mean what it says, and for what did I pay out my good money”? It is as easy to reach a result today which is both legally sound and in touch with reality.
Just as new attorneys soon learn to tell their clients, “sure, that man can sue you; he may not win, but he can sue,” so, too, it is true that a spouse who is awarded a decree of divorce which he or she asked for does have a so-called “right” to appeal. Here again, however, the Court ought not be caught up in the sport of playing with its own rules. In the first place, there will not be many situations where an attorney will allow the client to get involved in such a gambit. But if it does happen, a summary dismissal of the appeal should be the swift and certain disposition. Principles of judicial estoppel should suggest to any reasoning mind that a party may not invoke the processes of a court to acquire relief, and then appeal because of an entirely subjective desire that the relief awarded and sought should have been delayed until the exact time suitable to that party — that party desiring to use the withholding of the decree as an instrument of leverage. On that basis the bench, the bar, and especially the public, will be little troubled by our opinion today.
For the reason that such a spurious appeal would be subject to summary dismiss*417al, it is readily seen that there is no substance to an imagined worry of “an interminable delay” in concluding remaining litigation on the ancillary issues of child custody, support, and property disposition. Additionally, I am unable to find anything in I.A.R. 13(b) which divests the district court of jurisdiction to proceed with trial and disposition of the remaining issues. That exact question was posed to extremely able counsel at oral argument in Joyce Livestock Co. v. Hulet, 102 Idaho 129, 627 P.2d 308 (1981), and elicited the response that the answer was something he would like to know. No voice from the bench purported to provide any answer. I thought then, and continue to so believe, that appeal of a partial final judgment does not and should not divest the trial court of jurisdiction to hear issues yet untried. At the least that decision should be left to the determination of the trial court. The gratuities in a dissenting opinion infer a belief that, until such an appeal is disposed of and upon remittitur, the case does indeed fall into “limbo.” For my part, I fail to understand why this would be required, and especially in this particular situation.
District judges are very close to the people whom they serve, and whose problems they solve — for the most part doing so quietly and efficiently, and without requiring the help of this Court. Recognizing as they do that marriages do come apart and new alliances are made, the only reasonable course of action was that taken here by the district judge, which is that also taken by other district judges throughout the state. I am unable to understand why it is urged that we should be setting up roadblocks to a practice which has been followed for over twenty years, and which has well served the litigants and the practitioners. This Court has forever indulged in the philosophy that morality should prevail over immorality (hence our common law marriage doctrine has remained inviolate). There is no justifiable reason why the parties to a marriage gone bad must stay married until every last issue of the divorce action has been finally resolved. Carried to the extreme, the contrary view would prohibit remarriages until the divorce action was completely terminated by elapse of appeal time or final determination of any appeal taken. Delaying the legal effect of a decree dissolving a marriage would only be conducive to the establishment of illicit alliances by persons who are actually not so inclined, and serve no proper interest whatever. This would be bad law and a break with Idaho precedent.
As for Suter v. Suter,1 in which case I did not participate, while it has to be conceded that I.C. § 32-909 worked a denial of equal protection,2 it also should be noted that an alternate route was available in disposing of that problem, and one which finds more favor in the courts than does voiding a legislative statute. The Court could have then, and yet can, save the statute. All that is necessary is a saving judicial interpretation providing that after separation the earnings and accumulations of both spouses are the separate property of each.3 See Orr v. Orr, 374 So.2d 895 (Ala.Civ.App. 1979) (construing alimony statutes neutrally to extend benefits to husbands as well as wives); see also Beal v. Beal, 388 A.2d 72 (Me.1978). Apparently the opportunity to so rule was not presented to the Court at that time and did not independently surface as a better disposition than the voiding of the statute. For certain, if the Harrigfeld and Orr solutions were applied to I.C. § 32-909, this would resolve the “problem” seen in the dissenting opinion.
*418As a general proposition of jurisprudence, rights and obligations of litigants are set as of the initiation of the complaint. Although trials may sometimes be far down the road, the relief accorded is that to which the prevailing party is found entitled as of the initiation of the action (absent supplemental pleadings introducing issues arising out of events which transpired thereafter). Such being so, there is no sound reason why a spouse, who comes into court and claims his or her right to a dissolution of the marriage, should be entitled to delay and procrastinate and at the same time claim the monetary benefits which may flow from hanging on to the spouse who is, other than financially, persona non gratis. On the contrary, such a spouse should be understood as telling the court that the marriage is over, turn us loose as quickly as you can, and in due time settle our differences regarding property and the children. There is no logical reason why a party should be allowed to insist that the Court confound the situation by a holding that the wife can continue to share in an increase in marital accumulations while in court asking for severance of the marital cord which umbilically provides those very benefits.
With due respect for the sincerity of Justice Bakes’ concern for the expected demise of Rule 54(b), which he infers is about to descend upon us per his footnote 7, the trial bench and bar may find that worry somewhat difficult to square with the Court’s disposition of a Rule 54(b) certified appeal in Washington Carriers v. Beckley Trucking, 102 Idaho 38, 624 P.2d 946 (1981), wherein a dissenting opinion pointed out that the party who obtained the certification, then, in a motion to dismiss the ensuing appeal challenged the validity of the certification — the sort of rule gamesmanship which also occurred in Fuller v. Fuller, 101 Idaho 40, 607 P.2d 1314 (1980) — both cases perhaps being examples of genuine nullification, which might raise an eyebrow here or there, if not causing an ulcer.
The reader of today’s opinions will likely infer that my use of “judicial estoppel” has evoked the manufacture of the phrase, estoppel of “chameleonic guise.” My failure to earlier elaborate on judicial estoppel, was occasioned by the belief that it is a well-recognized principle of our jurisprudence. I continue to believe it applicable here, and in addition to referring to 28 Am.Jur.2d, Estoppel and Waiver, §§ 71, 74 (2d ed. 1966). I mention also Loomis v. Church, 76 Idaho 87, 93, 94, 277 P.2d 561, 565 (1954), where a unanimous Court said of the doctrine of judicial estoppel:
“It is quite generally held that where a litigant, by means of such sworn statements, obtains a judgment, advantage or consideration from one party, he will not thereafter, by repudiating such allegations and by means of inconsistent and contrary allegations or testimony, be permitted to obtain a recovery or a right against another party, arising out of the same transaction or subject matter.”
Surely it ought to be that a party alleging grounds for a divorce and getting one is hardly in any position to complain of the alacrity with which the Court moved.
. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).
. Section 32-909 provided that the earnings and accumulations of a wife were to be her separate property when acquired after separation. This exclusion from community property of the post separation earnings of a wife was found to be unconstitutional in Suter on equal protection grounds. Thus, the Court eliminated the statutory exception to the general community property rule and ruled that the post separation earnings of both spouses were to be considered community property subject to assignment. 97 Idaho at 467, 546 P.2d at 1175.
.This is the exact route taken by the Court in Harrigfeld v. District Court, 95 Idaho 540, 511 P.2d 822 (1973).