White v. White , 94 Idaho 26 ( 1971 )

SHEPARD, Justice

(concurring specially).

I concur in the result reached by the majority opinion. I do not agree, however, with the reasoning by which the majority opinion reaches the result. At issue at the trial of this matter, among other things, was the desire of the appellant to be awarded child support for a female child above the age of 18 but less than the age of 21. Appellant stated that the age of majority for a female in Pennsylvania was 21 years. The trial court held, and the majority opinion herein supports the view, that it was unnecessary for the trial court and is unnecessary in this Court to determine the age of majority in Pennsylvania since it is presumed to be the same as in Idaho absent compliance with our statutes which set forth the method of proving the law of a foreign jurisdiction or, as the majority states, in the absence of a specific request by counsel that the trial court notice judicially the law of Pennsylvania. With that reasoning I cannot agree.

As the majority opinion points out, modern communications have put the statutory compilations of other states within easy access of Idaho courts. Where the laws of sister states are ascertainable with verifiable certainty, those laws should be the subject of judicial notice by Idaho’s courts, for the reasons supportive of judicial notice generally: economy of time and effort in the judicial process by doing away with the necessity of formal proofs of facts where such proofs are not necessary to the sure ascertainment of the particular facts.

To require, as the majority opinion suggests, that counsel must “request” judicial notice is to ignore the true meaning of the term. Judicial notice is “the act by which a court in conducting a trial or framing its decision, will, of its own motion, and without the production of evidence, recognize the existence and truth of certain facts * * Blacks Law Dictionary, Revised 4th Edition, 1968.

In the case at bar the facts are claimed to have required the application of Pennsylvania law. Under the statutes of that jurisdiction a female reaches majority at the age of 21. Pennsylvania Statutes Annotated, Title 46, Section 601, Part 62. It is my opinion that the court below and the court here should notice and recognize such statute.

There was, however, a complete lack of showing at the trial court level as to the status of the female child in question. There was no showing as to any sums necessary to be expended for the support of the said “child” nor whether she was or was not emancipated or living with the defendant. The inference contained in the testimony was that she would not be living with the defendant but would be attending college in a place unknown and at a cost unknown. There was no argument at trial or here that under Pennsylvania law plaintiff would be required to pay the costs of a college education for his child. In the absence of any of these showings, I conclude that it was proper for the trial court to deny child support to the appellant and I therefore concur in the result reached by the majority opinion.