Opinion
Docket No. 23234
Filed December 12, 1997 Petition for review granted March 10, 1998.
Appeal from the District Court of the Second Judicial District, State of Idaho, Lewis County. Hon. George R. Reinhardt, III, District Judge. Hon. Michael J. Griffin, Magistrate.
Order of the district court, on appeal from the magistrate division, affirming award of property in divorce action, affirmed in part, reversed in part and remanded.
Randall, Blake Cox, Lewiston, for appellant. Scott M. Chapman argued.
Clark Feeney, Lewiston, for respondent. Paul T. Clark argued.
In this divorce action, we are asked to review a district court's order affirming a magistrate's division of property. For the reasons set forth below, the magistrate's order is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.
I.
BACKGROUND
Susan K. Barton filed for divorce from her husband Steven L. Barton. The matter was tried before a magistrate. After the parties presented their cases, they agreed to submit their closing arguments in writing. The magistrate issued a decree of divorce and therein ordered a division of the parties' assets and liabilities. Susan appealed, and Steven cross-appealed. The district court reversed the magistrate and remanded the case for specific findings of fact and conclusions of law. On remand, no additional evidence was admitted. The magistrate issued amended findings and conclusions. Susan again appealed, and the district court affirmed. Susan now appeals to this Court, claiming that the magistrate erred in failing to properly identify the nature of two of the assets-the First Affiliated Securities account and the Boyer property. Susan also asserts that the magistrate erred in failing to divide the community property in substantially equal shares.
II.
DISCUSSION
Our review of a magistrate's decision is made independently from, but with due regard for, the decision of a district court sitting in an appellate capacity. Worzala v. Worzala, 128 Idaho 408, 411, 913 P.2d 1178, 1181 (1996); Smith v. Smith, 124 Idaho 431, 436, 860 P.2d 634, 639 (1993). The magistrate's findings of fact will be upheld if they are supported by substantial and competent evidence. Worzala, 128 Idaho at 411, 913 P.2d at 1181; Smith, 124 Idaho at 436, 860 P.2d at 639.
A. First Affiliated Securities Account
The First Affiliated Securities account was opened in Susan's name prior to the marriage and contained $107,138 at the time of the trial. Both parties presented evidence as to the characterization of the funds in the account. The magistrate found that $10,611 was Susan's separate property and $96,527 was the parties' community property.
On appeal, Susan asserts that the $107,138 in the First Affiliated account was almost entirely her separate property. She claims that Steven made a judicial admission in his written closing argument before the magistrate that a substantial portion of this account was Susan's separate property. Specifically, Susan asserts that Steven admitted that only $10,611 of the $107,138 was community property and the balance, $96,527, constituted Susan's separate property. She also asserts that the First Affiliated account was almost entirely her separate property using either the accounting or tracing method for determining the separate nature of property.
Steven contends that the language in his closing argument was only a recapitulation of Susan's testimony at trial. Steven also contends that if there was a concession on his part, it was not binding under the theory that a party cannot make a concession which was contrary to established case law and which changed the character of marital property subject to equitable division. See Berry v. Berry, 350 S.E.2d 398 (S.C.Ct.App. 1986), aff'd, 364 S.E.2d 463 (S.C. 1988).
A judicial admission is a formal act or statement made by a party or attorney in the course of judicial proceedings. Strouse v. K-Tek, Inc., 129 Idaho 616, 618, 930 P.2d 1361, 1363 (Ct.App. 1997). A judicial admission "limits the issues upon which the cause is to be tried and obviates the necessity for proof of facts within the ambit of a distinct and unequivocal admission . . . so made." McLean v. City of Spirit Lake, 91 Idaho 779, 783, 430 P.2d 670, 674 (1967). For a judicial admission to be binding on a party, it must have been a deliberate, clear and unequivocal statement about a concrete fact within that party's knowledge. Strouse, 129 Idaho at 619, 930 P.2d at 1364. In determining whether a statement constituted a judicial admission depends upon the circumstances of the individual case along with the context in which the statement was made. Lowe v. Kang, 521 N.E.2d 1245, 1247-48 (Ill.App.Ct. 1988); Kohne v. Yost, 818 P.2d 360, 362 (Mont. 1991). In making this determination, we focus on the statement itself and not on the stage of the litigation proceeding. Kohne, 818 P.2d at 362; Matter of Estate of Tallman, 562 N.W.2d 893, 896 (S.D. 1997). Statements made during closing argument are not excluded from consideration as judicial admissions. See, e.g., United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991); Larson v. A.T.S.I., 859 P.2d 273, 276 (Colo.Ct.App. 1993); Lowe, 521 N.E.2d at 1247-48; Chilton v. Gorden, 952 S.W.2d 773, 778 (Mo.Ct.App. 1997); Kohne, 818 P.2d at 362; World Mart, Inc. v. Ditsch, 855 P.2d 1228, 1237 (Wyo. 1993). Whether a statement constituted a judicial admission is a matter of law over which we exercise free review. Strouse, 129 Idaho at 618, 930 P.2d at 1363.
In Steven's closing argument, which was submitted in writing to the magistrate, Steven stated that the First Affiliated account contained $107,138 at the time of trial. The source of this amount, as Steven acknowledged in his closing argument, was attributed to Susan's testimony at trial. Steven then detailed certain funds within the account totaling $96,526.67 and stated that the "difference between $96,526.67 and $107,138 ($10,611) should be treated as community property [Emphasis added]." Within Steven's closing argument, he concluded that Susan would "receive the value of $107,259 in community property" and Steven "would receive $22,598, for a difference of $84,661." Steven then proposed that Susan "make a payment to him in the amount of $42,330.50 to equalize the division of community property." The $107,259 amount that Steven asserted was Susan's community property included only $10,611 of funds from the First Affiliated account, with the remainder, $96,527, continually listed as Susan's separate property.
Steven's admission in his written closing argument that only $10,611 of the funds within the First Affiliated account was community property was a deliberate, clear and unequivocal statement of Steven's assessment of the nature of the funds within the First Affiliated account. Steven's admission did not change the character of the funds within the First Affiliated account contrary to case law as argued on appeal; rather, Steven's admission related to a factual issue that was within his knowledge concerning which funds within the First Affiliated account were community property and which funds were Susan's separate property. We further note that, had Steven taken the position that $96,527 of that account was community property, he certainly would have also demanded a much larger payment to him to equalize the division of community property. Thus, based on the foregoing admission by Steven, as well as our own independent review of the record, we conclude that the magistrate erred in finding that $10,611 of the First Affiliated account was Susan's separate property and $96,527 of the First Affiliated account was community property. We reverse the magistrate's order with respect to its findings associated with the First Affiliated account.
B. Boyer Property
The Boyer property consisted of two plots of land that were acquired during the marriage. In its order, the magistrate found that the property was the community property of the parties.
Susan contends that the Boyer property was her separate property. Susan asserts that the property was purchased with her separate property and that the debt thereon was also secured by her separate property.
All property acquired during the marriage is presumed to be community property. Smith, 124 Idaho at 436, 860 P.2d at 639; Winn v. Winn, 105 Idaho 811, 813, 673 P.2d 411, 413 (1983). The party asserting that the property is separate has the burden of showing with reasonable certainty that the property is separate. Smith, 124 Idaho at 436, 860 P.2d at 639; Winn, 105 Idaho at 813, 673 P.2d at 413.
The Boyer property was acquired during the parties' marriage. Although Susan claims the property was acquired with her separate property, there was evidence, uncontroverted by Susan, that Steven obtained a short-term loan in his name to assist in purchasing the property. Also, it was uncontroverted that the First Affiliated account, which secured the debt on the property and covered certain payments on the debt, partially contained funds of a community property nature. Finally, a review of the evidence shows that the property was deeded in both Steven and Susan's names as husband and wife. Accordingly, we conclude there was substantial and competent evidence to support the magistrate's finding that the Boyer property was community property, and said finding will not be disturbed on appeal.
C. Division of Community Property
Susan lists as her final issue on appeal that the magistrate failed to "equally divide community property and/or debts." Based upon our decision to reverse the magistrate's order with respect to the First Affiliated account, we remand for a redivision of the parties' property. On remand, the magistrate may, within its discretion, take further evidence or proceed on the established trial record.
III.
CONCLUSION
We hold that the magistrate erred in finding that $10,611 of the First Affiliated account was Susan's separate property and $96,527 of the First Affiliated account was community property. We reverse the magistrate's order with respect to its findings associated with the First Affiliated account. We conclude that there was substantial and competent evidence to support the magistrate's order that the Boyer property was community property. Based on our decision to reverse the magistrate's findings with respect to the First Affiliated account, we remand to the magistrate for further proceedings consistent with this opinion. No costs or attorney fees are awarded to either party.
Chief Judge LANSING and Judge Pro Tem CAREY, CONCUR.