Olsen v. Olsen , 115 Idaho 105 ( 1988 )

SHEPARD, Chief Justice,

dissenting.

I must dissent because in my view the trial court had jurisdiction over the parties and the related property issues. Insofar as a court has two voluntary participants before it, neither of which have appealed the court’s denial of motions to dismiss, it has jurisdiction to decide the issues before it.

I am in agreement that the earlier divorce decree granting Mrs. Olsen a contingent life estate in the parties’ marital residence was binding upon the parties. Had Mrs. Olsen appealed the court’s denial of her motion for summary judgment on res judicata grounds, today’s jurisdictional ruling would be correct. However, no appeal was taken. Thus, the objection to jurisdiction must be deemed voluntarily waived.

I applaud the trial court’s action that sought to rid the parties of the co-ownership that had been nothing more than a constant source of friction since the time of the divorce decree. The court calculated the present value of Mr. Olsen’s interest and ordered Mrs. Olsen to pay that amount over to the court. By all indications, she willingly complied with the order in hopes of ending Mr. Olsen’s claim to any share of her residence. I would affirm the trial court’s action, but only up to that point.

I would reverse the second part of the order that allowed Mr. Olsen to unilaterally force the sale of the home. It defies logic to require such a sale where neither party, nor justice, is served by such an outcome. Mrs. Olsen paid the value of Mr. Olsen’s interest over in cash and she had possession of the long occupied residence that presumably served her needs. That should have been the end of it.