concurring and dissenting.
I concur in the opinion of the majority except as to Part I, wherein the majority reverses the district court which held that *988the divorce was effective on the date of summary judgment.
The majority in Part I relies substantially on Newell v. Newell, 77 Idaho 355, 293 P.2d 663 (1956). As recognized by the district court in the instant case, Newell was overruled in Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982). The author of the majority in the instant case merely reiterates the argument set forth by Bakes, J., in his dissent in Ross, supra. It thus appears that the Court has come full circle now, overruling Ross, supra, and reinstating the earlier decision of Newell, supra.
The majority in the instant case attempts to distinguish the instant facts from the facts in Ross from which the Court there held that the principles of quasi-estoppel prevented the plaintiff in Ross from claiming error in the summary judgment granting the decree of divorce. In my view, in contrast to the assertions in the majority, this case cannot be distinguished from Ross. As in Ross, the defendant herein sought the divorce. As in Ross, the defendant here sought and received support from plaintiff, sought and received more than $3,000.00 attorney fees, and $1,300.00 in accounting fees. Defendant several times sought to have plaintiff held in contempt, and had execution issued upon plaintiff’s assets. In my view the principles and holding of Ross are equally applicable in the instant case.
In concurring in the applicable portion of the Ross decision, Bistline, J., stated:
Principles of judgment 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.
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.
BISTLINE, Justice, concurring only with part V, dissenting in Parts I and III, and not participating in Parts II, and IV.
The magistrate trial court, Judge Edwards, and the appellate district court Judge Hurlbutt, have facilitated and favored our appellate review with excellent decisions embodying the present status of Idaho case law, concerning which they differ only in application of the Ross decision. It will be a surprise to Judge Hurlbutt to find today that the Ross holding and philosophy is so quickly narrowed. Justice Bakes’ opinion, in my view, theorizes what he thinks was in, or should have been running through, the mind of Judge Edwards when he denied certification — for which action I see no supporting rationale in the record.
Consistent with our majority opinion in Ross v. Ross, and consonant with the views expressed in my separate concurring opinion in Ross1, I am in full agreement with Judge Hurlbutt’s application of Ross to the circumstances of this case, differing only on one small point.
Judge Hurlbutt’s appellate decision directed the magistrate to resolve Mrs. Swope’s claim of a common law marriage of the parties after the entry of the partial summary judgment and before the trial on the contested property and support issues. In full agreement with his view, nevertheless, I seriously doubt that there is any authority for the proposition that a trial court can in a single action twice divorce a married couple — assuming that it very well may be determined that there was a common law marriage, which those who form a majority in Part I do. As the Court observed in Eliasen 2, if the evidence presented is sufficient to raise the presumption of marriage, the burden is shifted to the other *989party to disprove the validity of the asserted common law marriage. 105 Idaho at 238, 668 P.2d at 114. The principal of law involved was well-stated in Mauldin v. Sunshine Mining Co., 61 Idaho 9, 17, 97 P.2d 608, 611 (1939), and has been adhered to for now almost a half century without deviation in the slightest:
There is no showing that the parties entered into a meretricious relation at the inception of the relationship, but to the contrary there is the foregoing positive testimony relating to the inception of the relation strictly to the effect that the parties entered into a marriage relationship as man and wife. The rule adopted in this jurisdiction is that the law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy, every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of proof, the law raises a strong presumption of its legality, casting the burden of proof upon the party objecting and requiring him in every particular, to make plain, against the constant pressure of this presumption the truth of law and fact that the marriage is illegal and void. In Smith v. Smith, 32 Ida. 478, 185 Pac. 67, wherein this presumption is indulged the rule is stated as follows:
“The general rule, quoted by the supreme court of California from Bishop on Marriage, Divorce and Separation, is:
‘ “Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of proof, the law raises a strong presumption of its legality; not only casting the burden of proof on the party objecting (1 Bishop on Mar. Div. & Sep. secs. 946-948), but requiring him throughout, in every particular, to make plain, against the constant pressure of this presumption, the truth of law and fact that it is illegal and void.” Id. Sec. 956.’ (McKibbin v. McKibbin, 139 Cal. 448, 73 Pac. 143.)
“Or as otherwise stated by the New York court of appeals in the following language, which has been frequently quoted with approval by more recent authorities:
“ ‘The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presume morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.’ (Hynes et al. v. McDermott et al., 91 N.Y.Supp. [N.Y.] 451, at 459, 43 Am. Rep. 677; Sloan v. West, 50 Wash. 86, 96 Pac. 684,17 L.R.A. (N.S.) 960; Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657,1084; Teter v. Teter, 101 Ind. 129, 51 Am.Rep. 742; Rooney v. Rooney, 54 N.J.Eq. 231, 34 Atl. 682.)” (Huff v. Huff, supra; Dawson v. United States, 10 Fed. (2d) 106.)
Proof of marriage by the testimony of one of the parties has been specifically recognized by this court in Labonte v. Davidson, 31 Ida. 644, 175 Pac. 588, wherein it is said:
“The presumption of law is in favor of the validity of a marriage (Huff v. Huff, 20 Ida. 450, 118 Pac. 1080), and the direct testimony of respondents was sufficient to establish, prima facie, their relation of husband and wife. Marriage may be proven by the testimony of one of the parties. (Watson v. Lawrence, 134 La. 194, 63 So. 873, Ann.Cas. 1916A, 651, and note, L.R.A. 1915E, 121.)”
In addition to the testimony of appellant heretofore referred to there is considerable evidence of a mutual assumption of marital rights, duties and obligations, that the parties held themselves out to the world as husband and wife and cohabited together as such. The facts disclosed by the record did not permit of the presumption that the relationship of *990appellant and John Mauldin was illicit in its inception, but rather the evidence was sufficient to establish their relationship of husband and wife, raising the strong presumption of its legality, and casting the burden of proof upon respondents to repel such presumption by the most cogent and satisfactory evidence.
The facts that the parties were once ceremonially married and lived together for a number of years, and no impediment existing which prevented a valid marriage, seemingly would erect an almost insurmountable burden of proof barrier which by law is cast “upon the party objecting.” If, as would appear to be so, that the parties considered that they could thereby nullify the divorce which had been granted, nothing stood in the way of two competent people enjoying a second marriage, whether the law (the Supreme Court) considers that the divorce in this instance was interlocutory — at least up until the time one of the two might have married someone else.
The record in this case shows that as of October 14, 1982, Mr. Swope’s claim for a divorce was predicated only upon grounds of irreconcilable differences. Mrs. Swope’s counterclaim for a divorce was similarly worded. On October 14, after Mr. Swope on his summary judgment motion was granted a divorce, as of January 2, 1981, the remaining issues were set for trial on June 1, 1981. The parties agreed to call off the trial and resume living together, and did to until just “several months” prior to October 24, 1982. From the 9th of February, 1981, until the 24th day of October 1982, almost 21 months, the file in the divorce action was wholly dormant. Activity therein only resumed when Mrs. Swope sought temporary support commencing with October of 1982. The last previous activity in February of 1981 was the initiation of contempt proceedings by Mrs. Swope to collect $1,000 of temporary support for that month of February 1981, allegedly due pursuant to an oral agreement of counsel. Thereafter Mrs. Swope filed an amended counterclaim for divorce in mid-November of 1982.
Apparently, the parties and the trial court were of the disposition that a pending divorce action may be used as a streetcar and the parties are free to get off and on at will. But that is not at all the way things should be done. If the parties did agree to call off the divorce action and go back together as husband and wife, as most assuredly is borne out by the record, they should have notified their attorneys, who in turn would have had the action dismissed. An ancient axiom here applicable is that equity considers done that which should have been done. Whereas Mrs. Swope filed an amended counterclaim, she should have initiated a new action to dissolve the second marriage, if indeed there was a reconciliation and resuming of a husband-wife relationship was fait accompli. When things went awry after a rather lengthy reconciliation and the streetcar was still running, so to speak, they jumped on. The only way to sensibly dispose of this appeal is to dismiss it with instructions to the trial court to enter a dismissal of the action if it concludes that the marriage relationship was resumed. The district court, if it does so conclude, is certainly entitled to set aside the divorce decree whether it be considered interlocutory as Justice Bakes contends, or simply subject to further consideration as the Court stated in Ross. Certainly there is no element of estoppel.
As what I hope is a final note, and not in anyway retreating from the foregoing, I am in agreement with the views of Huntley, J., which points to an important fallacy in the opinion authored by Bakes, J.
. Ross v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982).
. Matter of Eliasen, 105 Idaho 234, 668 P.2d 110 (1983).