Poesy v. Bunney

SHEPARD, Justice,

concurring in part and dissenting in part.

I concur in the entire opinion of the majority except that portion affirming the award of attorneys’ fees on appeal to the mother of the children. I agree with the majority that the award of attorneys’ fees could not have been pursuant to I.C. § 32-704 since that statute only authorizes allowances while the action for divorce is pending. Hence, I also agree that appellants’ argument as to the unconstitutionality of that statute need not and should not be reached in the instant case.

The majority bases its decision on the attorneys’ fees in part on Dykstra v. Dykstra, 94 Idaho 797, 498 P.2d 1270 (1972). At issue in Dykstra was the inability of the mother of the children to support and maintain them under the child support provisions of the original decree and the mother’s petition for increase in such child support allowances. Clearly, the best interest and maintenance of the children were there at issue. In the case at bar the majority has reversed the decision of the lower court on the basis that such court did not give adequate consideration to the wishes of the children for a change of custody to the father. Such is important, the majority tells us, because if other factors are equal, the best interest of the child is facilitated by placement in a custodial surrounding which is compatible with its desires. Hence, I would feel that the actions of the mother in this case cannot be equated with the best interests of the children and therefore attorneys’ fees on that theory should not be awarded.

I would further point out that in the case at bar not only have many years passed since the relationship of husband and wife existed between the parties, but the mother of the children has long since found another man to support her. I had always believed the Idaho law to be that debts of a husband or wife contracted during the existence of a marriage relationship constituted community indebtedness. If that be so, the present husband of plaintiff-respondent is in the first instance chargeable for the debt relating to the employment of an attorney. Thus, the Court’s holding today relative to attorneys’ fees extends the liability of an ex-husband, not only to the debts of an ex-wife, but also to the debts of the ex-wife’s present husband.