(concurring in part and dissenting in part).
I concur in that part-of the majority opinion which reverses and remands that portion of the judgment and decree of divorce awarding the respondent wife the sum of $371,200. However, I disagree with that portion of the majority opinion which states:
“Community property statutes in Idaho do not contemplate that upon marriage the interests of each spouse in his or her separate property be assimilated by the community.”
It is obvious that the mere fact of a marriage in and of itself does not change the interest of a person in his or her separate property. Nevertheless I believe that language of the majority could lead to the inference that in no case could the separate property of a spouse be completely assimilated by the community. In my judgment the law of Idaho is otherwise and is clear that under certain circumstances the separate property of a spouse can be completely assimilated by the community. Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954).
I respectfully dissent from that portion of the majority opinion dealing with “community guarantees of corporate credit.” As pointed out in the majority opinion the husband and wife obtained a bank loan of $45,000 by delivering to the bank a continuing guarantee binding their community and separate property to a liability limit of $200,000. Thereafter, the husband and wife loaned that sum to the corporation. The district court found this transaction to be a contribution by the community to the corporation. In my judgment such finding was correct. The majority opinion, inferjntially at least, disagrees with said find.ng of the trial court and holds that the transactions did not create a community interest in the corporation. The majority opinion, however, does not appear to deal with said findings of the trial court in its remand, and I am at a loss to determine the significance of this court’s overruling of the trial court’s finding in this regard. The fact that the corporation at a later time evidently repaid the loan directly to the bank further confuses the already tangled financial affairs of this couple and the corporation.
I further dissent from that portion of the majority opinion denominated “the character of other property acquired during the marriage.” It is undisputed that Raymond Speer received gifts of cash which were deposited in the parties’ joint checking account together with community income. The district court found that the cash which constituted gifts and the cash which constituted community property *134were so commingled that all of said funds were to be denominated community property. The district court found, in effect, that the husband had failed to carry his burden of proof by establishing with reasonable certainty and particularity that the disputed property was purchased with separate property assets. In my judgment the majority changes very substantially the burden of proof which has always been upon that person asserting separate property ownership. Rose v. Rose, 82 Idaho 395, 353 P.2d 1089 (1960); Clifford v. Lake, 33 Idaho 77, 190 P. 714 (1920); Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66 (1913). If in retrospect it is now determined that sufficient evidence was not introduced to determine the character of the property, then in my judgment the husband failed to carry the burden of persuasion that the property was to be characterized as separate property.
I further believe the majority opinion ruling is based on the assumption that when separate and community funds were placed in one bank account, the separate funds were not intended and were not in fact expended for community expenses. I am not willing to make such an assumption and believe it contrary to common sense and the facts of life. My view is somewhat different and would indicate that at times what may be separate property of one of the spouses is often used for sending a child to college, making part of a down payment on real property, the payment of country club dues, or even such a mundane purchase as groceries. I would affirm the findings of the district court that the funds in the checking account were commingled and the property purchased therefrom is community property.
I further dissent from that portion of the majority opinion dealing with “certain debts incurred by Olive Speer after the parties’ separation.” It is clear in Idaho that debts incurred during the course of marriage, in the absence of court orders to the contrary, are community debts. In my judgment the amount of money paid by the husband to the wife for the support of the wife and children is completely irrelevant to the issue of whether or not such obligations are “community debts.” The trial court had before it all of the evidence heretofore discussed regarding the financial affairs of the parties. The trial court also had before it the facts as related in the majority opinion pertaining to the sums paid by the husband to the wife during the period of separation. Being advised of, and taking all of the evidence into consideration, at least in theory, the trial court then ordered the husband to pay the disputed community debts. I would not overturn or question the trial court’s exercise of its discretion.