BISTLINE, Justice, dissenting.

Even though I am fully convinced that Carmen Suchan, beyond any doubt, is still the owner of all of the one-half undivided one-half interest of all of the real property which was awarded her by the decree of divorce entered in Suchan I, (other than a tract in which she transferred her one-half interest to Amalgamated Sugar Co.), I commend those in the majority for conferring jurisdiction upon the trial court to entertain motions to re-evaluate its judgment toward the end of achieving a more equitable disposition of the assets. Given that broad power, the trial court can undo what has been aptly described as "a black day in the history of justice in the state of Idaho." While I have agreed, and continue to agree with that portrayal, I have never agreed with the intimation that the trial court was solely at fault, and "should have seized control of the situation on his own volition and revised and amended the judgment in such a manner as would more adequately implement the hopes of the parties and intention of the court. If the property could not in fact be sold for a sum even approaching the original valuation, then an amended decree and judgment should have so modified the amounts of money payable. The court might in an amended judgment have required the property to be sold through a process other than a sheriff's sale where the price was undoubtedly severely further depressed. At the least the court might have considered the possibility of division of the real property in kind, much as the court divided the farm equipment in kind between the parties." If blame is to be placed, and clearly it should be, it should be spread evenly on each and all of the component parts of the judicial system, and also, but in smaller part, on the attorneys who although they have to take the system as it exists, are still entitled to cry out when the system appears to be malfunctioning.

Starting here, at the top echelon, in Suchan I, 106 Idaho 654, 683 P.2d 607 (1984), the appeal which we heard was taken by George Suchan on December 10, 1982, from a district court appellate decision of August 30, 1982, which affirmed the divorce decree earlier entered by Judge Donald Robert Workman, on August 2, 1982, (modified April 14, 1982), dividing property in a divorce proceeding, and holding certain real property was community property under the doctrine of transmutation. The appeal from magistrate court to district court was filed on May 13, 1982. That district court appellate decision was supplemented by an additional written opinion of October 29, 1982. The appeal to this Court was filed December 10, 1982. The Notice of Appeal purportedly appealed directly from the trial court divorce decree, supplemental trial court findings and conclusions of April 14, 1982, and a Supplemental Order to Order granting stay of execution, dated July 30, 1982, and the district court's appellate decision.

The briefs in that first appeal to this Court discussed the Partition Order, but raised no issue thereon, and the Partition Order had not been appealed to the district court, which might have been thought to be a prerequisite to an appeal to this Court, unless we considered the Partition Order as an appendage of the divorce decree and judgment — a proposition never raised or discussed.

In short, there was in the 207 page record on appeal, a great amount of further proceedings which were taken in the trial court, and then in the appellate district court, which had nothing to do with the single issue presented to us in Suchan I. That voluminous volume of largely extraneous matter, together with comments in the briefs by counsel for both parties, was sufficient to apprise this Court that the decree of divorce which we were reviewing had not actually distributed what had been community real and personal property, and was not in and of itself a final decree when it was appealed to the district court. In that record before us, had it been observed, at page 111 was the very Order of Partition which we would eventually review in Suchan II, this case, and it was that order, and it alone, which was causing and would continue to cause "the procedural morass" into which this Court now states that the parties have brought themselves. We gave it no consideration whatsoever.

Even absent a motion by George Suchan in this Court for a stay order, there was enough extraneous matter in the clerk's order to apprise us that there were motions and orders in both the trial court and the appellate district court all at the same time, and that the same was likely still happening when and after jurisdiction was vested in this Court. The Partition Order had just been entered three days before the filing of the appeal to district court from magistrate court, and hence was on file when the jurisdiction of the district court was invoked by the notice of appeal.

After Judge Bruce resumed or assumed jurisdiction of the case as an appellate district judge, rather than as a trial district judge, and while the appeal was pending before him, under date of July 8, 1982, Carmen obtained an order from Judge Workman which required George to show cause why he should not be punished for contempt of court in not having complied with the Partition Order which had not been appealed from specifically, but which was necessarily part and parcel of the divorce decree and judgment in order that it could be considered final for appeal purposes. Unless it was so considered, the appellate district court did not acquire jurisdiction. Only if the Partition Order was so considered did the appellate court have jurisdiction, but if so, then the trial court, Judge Workman, did not have jurisdiction other than to issue a writ of execution for the monetary judgment award of $100,000 which was incorporated in the Partition Order. Counsel who had taken over George's representation so understood. In retaliating against the issuance of the June contempt order, he moved for a stay order using this language:

COMES NOW the defendant George A. Suchan, and moves the court for an Order staying all proceedings upon the Judgment and Partition Order appealed from by defendant pursuant to Rule 62(d) and Rule 83(i), Idaho Rules of Civil Procedure and Rule 13 of the Idaho Appellate Rules, relating to the sale or disposition of the separate and community property as said Judgment and Order pertain to the real property of plaintiff and defendant on the grounds and for the reasons that substantial issues in regard to the character of said property and therefore the ultimate division of the property upon the divorce of the parties have been raised by the appeal and irreparable harm could be done to defendant by an involuntary sale or the disposition of the said property during the pendency of said appeal.

Both motions were heard at the same time, but only George's was granted, and his attorney was directed to, and did, write the order which Judge Workman signed. Again similar language was selected by George's attorney:

A Judgment having been duly granted and entered in the above entitled action on March 22, 1982, and an Order of Partition having been duly granted and entered pursuant to said Judgment on the 10th day of May, 1982, . . . (Emphasis added.)

It was "Ordered that all proceedings on the part of the plaintiff under said Judgment for the payment of money by defendant to plaintiff in the division of community property be stayed pending such appeal."

Carmen's motion, however, had not sought payment of the $100,000 which George was required to pay under the Partition Order, but was simply attempting to gain possession of the machinery and equipment which had been awarded to her by the Partition Order, and which George was continuing to use, and allowing his own sons to use. She wanted to sell it to meet a down payment on a home she had agreed to buy.

There was before us sufficient reason to take some affirmative action. This thought is fortified by the additional fact that when Suchan I was on its first level of appeal to the district court, counsel for George Suchan did apply for and obtain a stay order of the execution. In turn that stay expired after the district court appellate decision was entered. On the further appeal taken to this court from the district court affirmance, no stay was requested, and in continuing proceedings below the magistrate was required to interpret the Partition Order, and the plunge into the morass was well under way.

Moreover, and of concern on and beyond this particular case, there is no valid excuse for tolerating a system which allows for, as here, a divorce action to be handled partly by a district judge, partly in the magistrate court, and then partly in the appellate district court, and also in this Court. If magistrates are given jurisdiction to try contested cases, one level of appeal should be done away with, and the first appeal should be directly to this Court. Pause to consider that had Suchan I been first assigned to the Court of Appeals, and on a review being granted here there would have been three levels of appeal. Had either Judge Bruce or Judge Workman been in sole control of this case, and not each been influenced by what each perceived to be the other's views on the Partition Order, the morass would likely not have come into existence.

I am in agreement with the Court's directive to the trial court on remand. I will mention that ten days in which to regroup and file motions is not overly magnanimous in view of the time lapse since the attorneys have been in contact with this case. However, once any motions are filed, the trial court will be in full charge as to the procedures to be thereafter filed, and the type of hearing which will be had. This Court has had jurisdiction of the case since March of 1984. That standing alone should imbue the trial court with the thought that a thorough re-examination of the whole case, including its own primary interpretation of the Partition Order, looking toward an equitable resolution that will be anything other than an uneven award of real property and the saddling of one party or the other with debt — recognizing, of course, that the parties only pursued that route in this case after the trial judge had been so persuaded by George's new attorney replacing his trial attorney.

The trial court should give favorable consideration to Justice Shepard's view of March 11, 1986, that "at the least the court might have considered the possibility of division of the real property in kind, much as the court divided the farm equipment in kind between the parties." The directions on remand allow the court to do so.

The trial court may well consider that counsel who had represented the parties throughout the divorce after the decree was entered, had both submitted propositions to the court which were based on an equal division. Many of this Court's cases say that it should be done, except where not feasible. Here, it will be mentioned again that after the decree was entered, George had substituted counsel, and it was new counsel speaking for George who persuaded the court to the view that a disparate award of real property with a compensating monetary award was the better way to go. And so the parties went deeper into the morass. At the same time George apparently ran head-on into the high-interest rates crunch which was likely not envisioned when the Partition Order was agreed upon by counsel and submitted for the court's signature. George was the person who should have requested that the Partition Order be rescinded. Instead, when faced with a contempt order, although he would have himself been excused because he allegedly could not come up with the $100,000 down payment, he did nothing, sought no judicial intervention to alleviate the situation. Instead, when his attorney somehow became of the opinion that the Partition Order gave Carmen's one-half undivided co-tenancy ownership over to George, the execution sale took place, George was happy, and undoubtedly his family happy, that they could now own all of the property, which prompted George to convey to his brother and mother his valuable right of redemption.

Judge Workman should have been well buoyed up with pride when our first opinion affirming was released. That opinion shows a considerable concern for the fact that the language of the Partition Order transferring Carmen's ownership in the realty was subject to, that is conditioned upon, George's first making the $100,000 payment and executing the note and mortgage. Our opinion labored mightily to work around the plain meaning of those words of art, and in doing so manufactured out of whole cloth a rationale which, basically out of deference, would support the holding of Judge Workman, who had not worked up any ratio decidendi for his own conclusion. At 106, 107 and 108, 741 P.2d at 1293, 1294 and 1295. March 1986 opinion. It was a tribute to Judge Workman that our opinion went to such lengths. But, we were careless. At 105, 741 P.2d at `292 our opinion twice spoke of the property being community:

The district court affirmed the magistrate court ruling that the partition order immediately conveyed Carmen's undivided one-half community real property interest to George and awarded a money judgment to Carmen.

. . . .

The district court held the prior ruling that the partition order conveyed Carmen's one-half community property interest to George was dispositive of this issue in favor of George.

At 105, 741 P.2d at 1292 this same misconception was repeated:

The magistrate found that all the real property awarded to George by the partition order had been sold. Since the only real property awarded to George by the partition order was Carmen's one-half community real property interest, the magistrate necessarily determined the partition order had conveyed that property to George. . . .

The fallacy of those statements is that there was not any community property. Following the divorce all realty was separately owned. Most of it was the farm parcels, and George and Carmen each owned as co-tenants. The only separate property was the three-acre parcel with the residence on it which the divorce decree declared to be George's, subject to a $60,000 obligation of reimbursement to the community, which was also awarded $30,000 to George and $30,000 to Carmen. That was the fallacy.

Worse than the fallacy involved was the use made of it at page 9 in our attempt to fortify an impossible conclusion on the language that George would receive clear title to the three-acre residence by complying with the Partition Order's requirement that George execute a $273,739.40 note and mortgage to secure Carmen. That portion of the Partition Order reads:

IT IS ORDERED that the down payment of the $100,000.00, hereinabove ordered, shall include the $30,000.00 for the home awarded to the Plaintiff [Carmen] as and for the community lien thereon. The Plaintiff [Carmen] shall, accordingly, execute and deliver a quitclaim deed conveying the separate property upon which the home is situated to the Defendant [George], upon the receipt of the down payment and delivery of the executed note and mortgage and related sales documents. (Emphasis added.)

This provision expressly conditions George's receipt of any interest Carmen might have had in George's separate real property upon George's execution of the note and mortgage. Nowhere does the order expressly condition George's receipt of Carmen's interest in the community real property upon George's execution of the note and mortgage. This suggests the drafter intended to omit the execution of the note and mortgage as a condition to George's receipt of Carmen's community real property interest. The drafter was not Judge Workman, but Carmen's attorney. We were reasonably entitled to surmised, however, that neither of the attorneys would have drafted the order without some guidance, advice, or direction from the court itself.

But, carelessly, and acting out of what was thought to be justified deference, our opinion went on to say:

The foregoing discussion shows one could reasonably interpret the partition order as requiring George to execute a note and mortgage in favor of Carmen as either a condition to George's receipt of Carmen's community real property interest, or merely as a condition to George's retention of that interest, after the order had immediately conveyed it to him. The order, being reasonably subject to conflicting interpretations, is ambiguous. Rutter v. McLaughlin, 101 Idaho 292, 293, 612 P.2d 135, 136 (1980) (contract case). On review we must therefore accept the magistrate court's interpretation unless clearly erroneous, particularly where he is interpreting his own order. I.R.C.P. 52(a) (1983); Rueth v. State, 103 Idaho 74, 77, 644 P.2d 1333 (1982); Javernick v. Smith, 101 Idaho 104, 106, 609 P.2d 171, 173 (1980). (Emphasis added.)

Carmen, of course, had no community interest, the instrument was not ambiguous, and we over-indulged in saying what we did. Even were there an ambiguity, the five of us with the legally-trained minds, could and should have reached a solution independent of Judge Workman's.

In furtherance of our attempt to uphold that which we believed was the magistrate's interpretation of his own handiwork, we even went so far as to draw our own inference supporting the magistrate by likening George's obligations to pay Carmen $100,000 and execute the note and mortgage as similar to his title being subject to the payment of all outstanding encumbrances thereon" (mortgages totaling over $100,000 to various creditors). Obviously, as I now see, with those encumbrances in place at the time of the divorce decree and still in place at the time of the Partition Order, the latter could not be interpreted as requiring George to forthwith pay the same off.

Carmen was, by the partition order, in turn required to convey title to her separate real property to George. George, or anyone to whom she might convey her interest in real property, would necessarily take it subject to encumbrances of record. And, on this second review, I observe that the order did not even purport to require any immediate payment of encumbrances; George was simply entitled to receive a deed of Carmen's undivided one-half interest in the real property which had been awarded to her by the divorce decree, and George would acquire her interest subject to encumbrances already against it, and also subject to the note and mortgage which he was to give her in payment. A separate paragraph of the Partition Order, did order George "to assume and pay all of the outstanding indebtedness of the community as found by the Court in the decree of divorce, and to hold the Plaintiff harmless therefrom." The divorce decree, in awarding real property in undivided one-half interests, and in awarding certain personalty and equipment, had placed equal responsibility on both George and Carmen for the outstanding indebtedness.

Additional insight was gained by resorting to the briefs filed in Suchan I. Both the briefs of George and of Carmen made reference to the Partition Order, which instrument — filed in the record after the divorce decree had been entered — went unnoticed and unmentioned in our Suchan I opinion. George's appellant's brief, filed April 25, 1983, provides this account:

On April 29, 1982 Roger D. Ling of the firm of Ling, Nielsen and Robinson was substituted in the place and stead of Lawrence H. Duffin of Burley, Idaho as husband's attorney and a response of husband to wife's Motion for Order of Partition was filed with the court. On the 11th day of May, 1982 the lower court, after hearing, filed its Order of Partition dated May 10, 1982, granting to husband a portion of the community personal property and all of the community real property and ordering that husband pay to wife a sum equal to the value of her interest in said property awarded to husband. Suchan I, Case No. 14890, Appellant's Brief, p. 2 (emphasis added).

Carmen's Respondent's Brief, filed May 12, 1983, put it differently (and with more detail and accuracy):

The decree awarded to each of the parties an undivided one-half interest in the community property, both real and personal, undertook to divide some miscellaneous personal property, and quieted title in the Defendant to his separate property (a 3-acre tract of real estate) subject to a lien in favor of the community in the sum of $60,000.00.

In addition the Court ordered the following:

"IT IS EXPRESSLY ORDERED that the community property of the parties hereto, not specifically designated for either of the parties herein, shall be placed for sale and sold at the earliest date, and in a manner calculated to derive the maximum available proceeds for distribution between the parties hereto.

"There shall be paid first from the proceeds of the sale of the community property, after the payment of all costs of sale, the indebtedness against the community, with the balance to be divided equally between Plaintiff and Defendant.

"IT IS FURTHER ORDERED that if partition of the property appears more feasible and necessary to effect the efficient distribution of the community property between the parties, the Court will undertake the partition of the real and personal property of Plaintiff and Defendant upon motion of either of the parties hereto."

. . . .

George Suchan, through his attorney, Lawrence Duffin, moved the Court for an order altering and amending the Findings of Fact and Conclusions of Law which came on for hearing on the 5th day of April, 1982. The order of the Court denying George Suchan's motion to alter or amend the Findings of Fact and Conclusions of Law was filed on the 14th day of April, 1982, together with the Court's Opinion and Supplemental Findings and Conclusions.

On the 23rd day of April, 1982, Carmen Suchan moved the Court for an order of partition.

On April 29, 1982, Roger D. Ling, of the firm of Ling, Nielsen Robinson, was substituted in the place and stead of Lawrence H. Duffin as George Suchan's attorney.

On April 29, 1982, George Suchan's response to the Plaintiff's motion for an order of partition was filed with the Court.

Carmen Suchan's motion for partition was heard on the 30th day of April, 1982.

On the 3rd day of May, 1982, the Court was advised of the terms agreed upon by the parties for the division of their property, which included the purchase by George Suchan of Carmen Suchan's equity in the real estate and a physical division of the machinery.

Thereafter, based upon the terms related to the Court by counsel, the Court filed its Order of Partition on the 11th day of May, 1982. Suchan i, Case No. 14890, Respondent's Brief, pp. 3-5 (emphasis added).

In a reply brief dated June 17, 1983, George contended:

It should be first pointed out that husband has never sought to have any of the property found by the lower court to be community property to be divided or the Decree of Divorce otherwise enforced. Wife did on April 23, 1982 file her Motion for an Order of Partition with the court. After the Motion for Partition was heard on the 30th day of April, 1982, the court entered its Order of Partition on the 11th day of May, 1982, whereby certain community property was awarded to husband and to wife and a judgment for the difference in values was awarded to wife against husband, allowing payment of the money judgment under certain terms provided therein. At page 5 of wife's Brief, wife states that husband and wife agreed to the purchase by George Suchan of Carmen Suchan's equity in the real estate. This is not an accurate statement and is not supported by the record in this case. For reasons that may become apparent at a future date, husband objects to this characterization of the facts by wife, even though such characterization is not relevant to the issues in this case. Suchan I, Case No. 14890, Appellant's Reply Brief, p. 1 (emphasis added).

It was truly irrelevant and received no mention in our opinion. Although George's Notice of Appeal filed in this Court in Suchan I purported to include the Partition Order, George had not appealed that order from magistrate court to the district court. George appealed to the district court only "from the final Judgment entered . . . on the 22nd day of March, 1982, and the Supplemental Findings of Fact and Conclusions of Law dated April 14, 1982. . . ." The stated issues to be presented to Judge Bruce were only four in number:

(a) Whether there is substantial and competent evidence to support the Findings of Fact of the court.

(b) Whether the court erred in concluding that an "Agreement as to status of community property after death of one of the spouses" which is revoked by law upon divorce of the parties, constitutes a conveyance of appellant's separate property to respondent, thereby transmuting said property into community property.

(c) Whether the lower court erred in adopting the value of defendant's separate property by the expenditure of community funds as of March 10, 1982.

(d) Whether the Conclusions of Law are supported by the findings of Fact. R., p. 122.

It was from Judge Bruce's decision affirming Judge Workman that we heard Suchan I on those very same issues, and affirmed. Although the Partition Order had been entered three days before the appeal to Judge Bruce, no appeal was taken from it and Judge Bruce also gave it no attention in his appellate decision. Our Suchan I opinion was concerned only with what we were led to believe by the parties was the final judgment in the case, hence making it appealable. Only when Suchan II surfaced in this Court did we become apprised that the controversial Partition Order was entered pursuant to a paragraph in the trial court's (Judge Workman's) final judgment stating that the court, upon motion of either of the parties, would "undertake the partition of the real and personal property of plaintiff and defendant." Judgment and Decree, R., p. 87.

With the case having been removed from Judge Workman, and while it was before Judge Bruce on appeal, the judge having by order of June 8, 1982, set a briefing schedule and oral argument for July 26, 1982, Carmen filed an affidavit in the case (at all times one and the same case, No. 7934) which affidavit stated that George had not and would not comply with the Partition Order. No reason therefore appearing, it was Judge Workman, not Judge Bruce, who signed an order to show cause in re contempt directed to George. On the following day, July 9, George filed a motion to stay all proceedings until his appeal was decided by Judge Bruce. Not Judge Bruce, but Judge Workman heard both the contempt motion and the stay motion on the same day, July 15. The court minutes of that date show the court's oral ruling that a stay would be granted until the appeal was decided, that George would be ordered to post bond in the sum of $150,000 — apparently as supersedeas for the stay order, and Mr. Ling was directed to prepare the orders. R., p. 137.

The order prepared by Mr. Ling, George's attorney, dated July 22, contained a long recital sentence and an order. The order stayed Carmen's efforts at obtaining compliance with the Partition Order, "on condition that" George furnish the $150,000 undertaking. But the 16-line one-sentence recital of the order entered, which Mr. Ling captioned "ORDER GRANTING STAY OF EXECUTION," was also couched in language of George having appealed from the Partition Order — which he had not done. It did correctly recite the partition order's requirement of $100,000 to be paid on or before the 14th day of June, 1982. It recited the terms by which George would pay Carmen $273,739.40 — but made no mention that the Partition Order required that this would be done by execution of a note in that amount, and a real property mortgage as security, both to be escrowed with appropriate conveyances from Carmen.

Eight days later Judge Workman entered a supplement to the foregoing order which stated that until the $100,000 payment was made, the sum of $273,739.40 would bear interest at the statutory rate of 18 percent. This is difficult of comprehension, as the Partition Order was exceedingly clear that that $273,739.40 would be paid in annual payments, and interest thereon would accrue at 12 percent per annum on the unpaid balance. Moreover, it was not a judgment as such for that amount of money, but stated the terms and provisions of a promissory note which George was required to execute, with security which was practically all of the real property which after the divorce became separately owned undivided one-half interests — vested in Carmen and vested in George. At best, it was the court's judgment, per the partition order, that Carmen would be conveying separately owned undivided one-half property interest to George in return for a sum of money to be paid by George per a $273,739.40 note and mortgage, and $100,000 down.

Enters next Judge Bruce on the scene in the same case but now before him as a one-judge appellate court, and hears oral argument on the appeal. On August 30, he renders his appeal decision affirming Judge Workman's divorce decree provisions which had declared the status of the real property involved and "dividing it," so to speak, by making George and Carmen co-tenants. No mention was made by Judge Bruce of the partition order — understandably because it had not been appealed. On October 29 by written opinion, Judge Bruce denied George's petition for rehearing.

While the appeal was pending before Judge Bruce, George did not post the required supersedeas bond, but Carmen nevertheless awaited out the decision on appeal. Not until December 6, 1982, did she renew her earlier attempt to obtain George's compliance with the Partition Order. Instead of pursuing George with another contempt process, she sought an order of the court which would allow her to proceed with an ongoing execution against the $100,000 money judgment incorporated in the Partition Order. Anticipating George's appeal to the Supreme Court from Judge Bruce's decision affirming Judge Workman, she sought to be relieved of the automatic seven-day stay period on filing of an appeal. The execution proceedings had already proceeded to the stage of posting and publishing.

Carmen's supporting affidavit is absolutely clear as to the purpose of the execution proceedings: " Plaintiff seeks thereby to execute on the initial $100,000.00, plus interest and costs which has been due and owing under the Court's Order of Partition since the 24th day of June, 1982." R., p. 164. Judge Bruce signed the order to show cause directed to George.

By yet another affidavit of December 6, 1982, Carmen sought an entirely different order that:

execution issue against the Defendant for the full sum of Plaintiff's community interest, over and above the execution presently in progress, by reason of the Defendant's failure, in any way, to obey the Order of Partition issued by the Court requiring the payment of money, and execution of notes, mortgages, and security instruments in protection of Plaintiff's lifetime accumulation. R., p. 171.

No authority was filed by Carmen which would suggest in the least any legal principles or precedent which would authorize the Court to completely alter the Partition Order — which by that time was final and unappealable. Neither Judge Bruce nor Judge Workman acted upon it.

Notwithstanding George's filing of an appeal to this Court on December 10, 1982, Judge Bruce conducted a hearing "upon the order to show cause" seeking court approval to proceed with the pending execution on the $100,000, plus interest thereon. Judge Bruce heard from counsel and, on December 13, 1982, entered the following Order Allowing Execution Sale to Proceed:

It appearing to the Court that a writ of execution issued on the 8th day of November, 1982, seeking enforcement of the Order of Partition entered in the above-entitled action and dated the 10th day of May, 1982; it further appearing to the Court that notice of appeal of the District Court Order affirming the Decree of Divorce was filed on December 6, 1982; it further appearing to the Court that the sum sought in such execution is the sum of $100,000.00 plus interest at the rate of 18% per annum on the full judgment in the sum of $373,739.40 from the 10th day of May, 1982, and costs;

The Court having been informed, in open court, that the Defendant could not post a cash deposit or supersedeas bond, and it appearing to the Court that the judgment sought to be enforced is a money judgment, and after hearing the argument of counsel, the Court being fully informed, and good cause appearing therefore,

IT IS ORDERED that the execution sale should proceed, as published and noticed, on the 15th day of December, 1982; R., Case No. 14890 (augmented into No. 15460) pp. 176-77 (emphasis added).

The Court minutes also make it absolutely clear that Judge Bruce was only considering the order to show cause why the pending and posted execution sale to satisfy the $100,000 money judgment should not take place, and was not considering the other order to show cause issued by Judge Workman. The court minutes are:

ORDER TO SHOW CAUSE WHY EXECUTION SHOULD NOT PROCEED EVEN IF NOTICE OF APPEAL IS FILED

Mr. Smith stated that he will stand on the affidavit pending proof.

Mr. Ling addressed the Court on preliminary remarks. States that they are unable to obtain a supersedeas bond for that amount of money, and they waive additional time to obtain bond at this time.

Mr. Smith again addressed the Court. States that one Order To Show Cause was scheduled for District Court and the other one scheduled before the Magistrate Court. Also addressed the issue on the bond and stated that there was never a bond posted on the appeal from Magistrate Division to the District Court. He feels that the execution should go forward.

Court stated that it hasn't considered the Order to Show Cause before the trial court, and that counsel can determine who should hear this.

Mr. Ling then addressed the Court and states he has no alternative, and would like to have Mr. Suchan testify.

Mr. Smith again addressed the Court. R., p. 178.

As mentioned, the appeal from the district court, Judge Bruce, to the Supreme Court was filed three days before Judge Bruce heard argument and ordered that execution could proceed, but the order to show cause signed by Judge Workman was never heard or considered, presumably because of the appeal from Judge Workman's court to Judge Bruce's court and also the appeal to this Court from Judge Bruce's court. And, although the appeal to this Court purported to appeal from the partition order, no issue regarding it was raised in the briefs, and the Partition Order went wholly unmentioned in Suchan I.

The writ of execution, which was not stayed but specifically allowed to go forward by Judge Bruce's order, was exactly as portrayed in Carmen's affidavit referred to above:

WHEREAS, the judgment roll in the action in which said Judgment and Decree, Order of Partition, and Supplemental Order to Order Granting Stay of Execution, are all filed in the Clerk's Office of said Court, in the County of Minidoka, State of Idaho, and said Judgment and Decree, and Order of Partition were docketed in said Clerk's Office, in the said County, on the days and in the year first above written, and the sum of $100,000.00 with interest from May 10, 1982, at the rate of 18% per annum is now, at the date of this writ, actually due on said Judgment and Decree, and Order of Partition together with the Supplemental Order of the Court thereto. Suchan I, Case No. 14890, R., p. 191.

It has never been claimed that the Partition Order did not amount to a $100,000 money judgment. No one has contended that interest on a money judgment does not accrue interest at the rate of 18 percent per annum — which has been so since 1981 Idaho Sess. Laws, ch. 157, p. 269. The direction to the sheriff set forth in the writ was in conformance with the provisions of I.C. § 11-102, and instructed as follows:

NOW, YOU, the said Sheriff, are hereby required to satisfy the judgment and order of the Court with interest as aforesaid, and costs and accruing costs, out of the personal property of said GEORGE A. SUCHAN, judgment debtor, or if sufficient personal property of said debtor cannot be found, then out of the real property in your County belonging to said debtor on the day when said judgment and decree was docketed in Minidoka County, or at any time thereafter, and make return of this writ within sixty (60) days after the receipt hereof, with what you have done endorsed thereon. Suchan I, Case No. 14890, R., p. 191.

Upon receipt of the writ and pursuant thereto the sheriff filed with the county recorder a Notice of Levy which correctly recited that the writ had issued on the May 10, 1982 order, and that "there was, and now is due and owing the sum of $100,000.00 plus interest at 18% per annum from the 10th day of May, 1982." Case No. 14890, R., p. 192. The sheriff's performance of his duty is clearly portrayed in the usual time-honored language:

I HAVE HEREBY LEVIED on all the right, title and interest of Defendant in and to the following real property in the County of Minidoka, State of Idaho, to wit: (Emphasis added.)

On the same date that the writ issued and Notice of Levy was recorded, the sheriff also signed a Notice of Sale which contained the same recitations as the Notice of Levy, and added also that the Levy had been made and gave public notice as follows:

PUBLIC NOTICE is hereby given that I, the undersigned as the Sheriff of the County of Minidoka, will, on the 15th day of December, 1982, at 10:00 o'clock AM, of such day, at 413 West 100 South of Paul, Idaho, at the George A. Suchan residence, in the County of Minodoka, State of Idaho, sell at public auction, to the highest bidder, for cash, all of the right, title and interest of Defendant in and to the above-described real estate (following the sale of personal property as separately noticed) or so much thereof as may be necessary to raise sufficient money to satisfy such execution, together with interest and costs thereon. (Emphasis added.)

In handwriting on the Notice is the statement "Subject to liens on property."

The sale took place as scheduled. Personal property which had been levied upon was first sold, all to Dan Suchan or Frank Suchan, for $22,500. Thereafter, with George Suchan utilizing his right to direct the order of sale, the various parcels of realty previously levied upon were offered and sold. Frank Suchan bought a quarter-section for $5,000, one quarter-section for $2,500, two quarter-sections for $1,500 each, and finally a tract known as the Burton Property for $1,500. Amalgamated Sugar Company bought the final tract for a $25,000 bid, and all were given certificates of sale. The sheriff returned the writ not fully satisfied by the amount of $75,439.13.

The controversy which thereafter ensued centered on a determination of what right, title, and interest in the real property sold at execution George Suchan owned on the date of the sale — which in turn requires a proper determination of the construction of the May 10, 1972 partition order. Judge Workman was the first judge to be called upon to determine the construction and legal effect of the May 10, 1982 order. Other courts in turn, including this Court, as stated at the outset in this opinion, thereafter deferred to his ruling. The issue was submitted on affidavits, testimony, and oral argument, and decided by written findings and conclusions under date of February 4, 1983.

The first finding of fact provides Judge Workman's view of the legal effect of the order of May 10, 1982, and would flavor all future appellate determinations:

FINDING NO. I

On the 10th day of May, 1982, this court entered an Order of Partition which provided, among other things, that the real property previously owned by the community of plaintiff and defendant was conveyed to and vested in defendant George A. Suchan as his sole and separate property, subject to a lien in favor of plaintiff Carmen Estelle Suchan in the sum of $373,739.40. Case No. 15460, R., pp. 61-62 (emphasis added).

Judge Workman's first conclusion of law was of the same vein:

The Order of Partition of this court dated May 10, 1982 granted to plaintiff a money judgment for all of her right, title and interest to community real property previously owned by the parties and conveyed and vested in defendant all of said real property, subject to said Judgment lien. Id., p. 64 emphasis added).

Judge Workman's Finding No. I and Conclusion No. I are the main focal point of all inquiry, because a proper interpretation of the Partition Order governs or affects the applicability of all ensuing decisions, determinations and orders. Judge Workman did not provide either the intermediate appellate court, District Judge Ronald D. Bruce, or this Court with any memorandum decision which would explain how he so reasoned. All that we have are Judge Workman's above-quoted bare legal conclusions as to the effect of the document of which his sole involvement was the affixing of signature, but which we previously thought was a document which he had authored, or, at the least, embodied a decision which he had made and passed on to counsel for the parties for the drafting thereof. Later proceedings shortly thereafter shed some illumination on what apparently influenced Judge Workman to characterize the Partition Order.

Following the January 1983 hearing and decision, there was another hearing before him on a motion by Carmen to set aside the execution sale. Judge Workman, on March 9, 1983, filed his findings of fact and, on April 1, 1983, filed his opinion and conclusions. The findings disclose that somewhere along the line the judge had forgotten how the Partition Order, by now the cause of all controversy, had come into existence. By his second of seventy separately stated findings, he attributed the entry of that order to Carmen: "Subsequent to the trial of this matter, and on May 10, 1982, this court entered its Order of Partition pursuant to Plaintiff's Motion for Partition." Case No. 15460, R., p. 80. In another finding he quoted from a recital that " the judgment sought to be enforced as a money judgment" — apparently being willing to deduce therefrom that Judge Bruce had characterized the entire May 10, 1982 order as money judgment — with which he, Judge Workman, did not want to or did not quarrel:

The District Court's Order of December 13, 1982 provided in part, as follows:

"7. The Court having been informed, in open court, that the Defendant could not post a cash deposit or supersedeas bond, and it appearing to the Court that the judgment sought to be enforced is a money judgment, and after hearing the argument of counsel, the court being fully informed, and good cause appearing therefore,

IT IS ORDERED that the execution sale should proceed, as published and noticed, on the 15th day of December, 1982. . . ."

(Files herein; emphasis added). Case No. 15460, R., p. 80.

In the very next finding, Judge Workman seemingly accepts as gospel the proposition that the real property advertised for sale and sold was all owned by George — notwithstanding that it was only George's right, title, and interest therein which Sheriff Jarvis had levied upon and advertised for sale.

"8. On December 15, 1982 an Execution Sale was conducted, the physical location of the sale being upon a portion of the real property awarded to the Defendant pursuant to the Judgment in this matter." Case No. 15460, R., p. 80 (emphasis added).

Another finding which is questionable because it is less than complete, but which clearly shows the flavor of the court's decisions, is:

14. . . . Prior to the Sheriff offering Parcel No. 1, Richard K. Smith announced to the prospective bidders that parcel No. 1 was offered " subject to the continuing lien of Carmen Estelle Suchan." Case No. 15460, R., p. 81 (emphasis added).

A subsequent finding was equally questionable as viewed relative to the evidence:

21. Prior to the sale of each parcel, Mr. Smith announced to the prospective bidders that the parcels were being sold subject to the continuing lien of Plaintiff. Mr. Smith also announced that certain affected parcels were subject to Federal Land Bank, Small Business Administration, Strasser Drilling and A.S.C.S. mortgages. Case No. 15460, R., p. 82.

Finding Nos. 37, 38, 41, and 42 enumerated various encumbrances, and did bear out that Mr. Smith did caution the bidders about those various liens.

Another finding laid somewhat of an onus, or "guilt trip," on Carmen for the whole situation:

52. Prior to the Execution Sale, and subsequent to the Partition Order entered herein, Plaintiff never gave to Defendant an alternate method by which to satisfy Plaintiff's interest in the parties' property. Case No. 15460, R., p. 86 (emphasis added).

The testimony of Sheriff Jarvis was somewhat like Judge Workman's findings, but not in close enough conformity therewith so as to allow the findings to pass muster. The sheriff was uncertain as to what was said about Mr. Smith's statements, especially as to claiming "a lien," but very specific that Mr. Smith advised the potential buyers present of Carmen's ownership of an undivided one-half interest in the property being sold, of which George owned the other undivided one-half interest which had been levied upon:

Q. Okay. What did he say prior to each parcel for sale?

A. I can't say word for word. And I don't even remember for sure who, other than the fact that he, prior to the sale of each parcel, that he would announce that there — the continuing lien of Carmen Estelle Suchan would apply to this property. Then, if there was some other liens, he would announce those.

Q. Okay. Now, did he announce that also as to the last parcel that was sold, that Mrs. Suchan's lien applied to that?

A. I believe he announced on all of it, plus there was Strasser's name was mentioned in there. There was somebody — When we're talking about the last one, we're talking about the one the sugar factory bought.

Q. The Sugar factory bought, yes.

A. There was some lien against some big grain bins that set way back off over in the corner. And I don't recall — I didn't write any of that down.

. . . .

Q. From what you heard Mr. Smith announce, do you think that those who were there understood that there was some claim of some sort as to this property by Carmen Suchan?

A. Oh, I'm sure. I'm sure. They couldn't have helped not to. He made it very plain that she still had an interest in that property. Tr. of Proceedings, March 3, 1983 (emphasis added).

The foregoing testimony was given by Mr. Jarvis when called as a witness by Mr. Larry Duff, representing Frank Suchan.

Mr. W. Parsons, an attorney who had been present at the sale, where he represented one of the bidders, Amalgamated Sugar Company, called as a witness by Mr. Duff, corroborated the sheriff:

Q. Where there any comments made by Mr. Smith that you heard at any time concerning any liens against the property?

A. Yes.

Q. And what was said, to the best of your recollection?

A. Mr. Smith, after Mr. Jarvis read the notice, and as he sold each parcel, Mr. Smith advised those people — or at least — apparently (inaudible) condition, that the property was being sold subject to the interest of Carmen Suchan. Id. at 13-14.

On cross-examination by Mr. Ling, Mr. Parsons did change the word "interests" to judgment lien — concerning which it was, or both, he wasn't much concerned:

Q. You indicated that you heard your partner indicate that the property was being sold, subject to the interests of Carmen Suchan. Is that my —

A. A judgment lien of Carmen Suchan.

Q. Oh. You said a judgment lien?

A. Yes.

Q. Okay. And did you know that — Well, that was the judgment lien, of course, that was being enforced by the Writ of Execution of the sheriff, wasn't it?

A. I don't know that.

Q. You didn't know that. Well, you had investigated this for the Amalgamated Sugar Company?

A. I had.

Q. And what did it mean to you when your partner stated, "The property is being sold subject to the judgment lien of Carmen Suchan?"

A. What it meant to me, Mr. Ling, that it was recorded in Minidoka County, a court order making certain provisions. I can't recite all those provisions to you. Id. at 18-19 (emphasis added).

Carmen took the stand, and was allowed to explain what interest she believed that her execution was directed against — with Judge Workman in the process acknowledging that his only participation with regard to the Partition Order had been the signing of it:

Q. Mrs. Suchan, did you believe that you still had a — an actual interest in the land at the time of sale?

MR. LING: Your Honor, I'm going to object to the plaintiff's belief. It's immaterial and irrelevant.

And, also, I'm going to object to the leading question. It's been most liberal. But I think it's improper to constantly put words in the witness's mouth, as all the questions have.

THE COURT: I will sustain the objection on the basis that it's leading.

MR. SMITH: Very well, Your Honor.

Q. (By Mr. Smith) At the time of the execution sale, Mrs. Suchan, what did you think your interest in the land was?

A. Well —

MR. DUFF: Objection, Your Honor. It's speculation. She's —

MR. LING: Well, we also object.

MR. SMITH: She — It's hardly speculative of what she thought. Her interest was of record.

MR. DUFF: I think — I think it's a matter of what the witness thinks her legal position may be. Of course, it really isn't material to the case what the question is, what her legal position was.

MR. SMITH: That's interesting, Your Honor, since she was bidding at the sale. She normally would have an opinion that was formed as to what she was selling. It's very germane to this.

THE COURT: Well, gentleman, the court is fully aware of the legal issues relating to counsel — various counsel's interpretations of the court order.

The court is also very well aware of the court's opinion regarding that order, since the court is the one who ultimately signed it.

I'm going to allow Mrs. Suchan to answer that question. Obviously the documents contained within the file speak for themselves, and to the certain extent Mr. Smith, you are inquiring regarding a legal opinion, which Mrs. Suchan is not authorized to give at this point. However —

MR. SMITH: Oh —

THE COURT: However, I will allow her to answer the question.

MR. SMITH: Thank you, Your Honor.

THE COURT: Yes.

THE WITNESS: At the time of the sale, I believed that we were executing on George's half-interest in the property, trying to get started on the agreement that had been made — the agreement earlier, trying to get the down payment so that we could get on with the agreement. Id. at 39-41 (emphasis added).

Nevertheless and notwithstanding the testimony, based on those findings, Judge Workman in his opinion and conclusions wrote the following excerpts:

That aside, this Court does not view Defendant's present position to be unjustifiable. The Partition Order granted to Plaintiff a collectable money judgment. Defendant was awarded farm machinery and farmland. Obviously the intent of the Partition Order was to keep intact a family farm, for the economical and emotional benefit of the parties and their children. As far as the Court is concerned, that was a reasonable solution to a difficult situation. Then came the Execution Sale. Defendant lost his farm machinery at the sale, as well as his farmland. The record is clear that in Defendant's opinion, if he redeemed the land, Plaintiff would merely cause another sale of his property. The record reveals Defendant's attempts to refinance his farming operation, to forestall such a sale, which efforts were fruitless. This Court can sympathize with the hopeless predicament Defendant envisions. The Court can also understand Defendant's position that if he cannot own the land, his brother should. Case No. 15460, R., p. 93 (emphasis added).

Judge Workman again thrust upon Carmen the entire responsibility for the situation which his construction of the Partition Order had occasioned:

Plaintiff's most convincing argument for vacation of the sale is that Plaintiff misinterpreted the Court's Order of Partition which gave rise to her money judgment and the ultimate sale. That argument is somewhat watered inasmuch as (1) the Partition Order came about as a result of Plaintiff's Motion for Partition; (2) Plaintiff's counsel prepared the Partition Order for the Court's signature; (3) Plaintiff proceeded to Execution Sale in the face of Defendant's objection in Court; and (4) the Court's order which denies Defendant's Motion to Stay, prepared and submitted by Plaintiff's counsel, refers to Plaintiff's money judgment. Id. (emphasis added).

At the time of the Execution Sale, Plaintiff had a substantial judgment against Defendant. Although she opted not to bid at the sale, she now complains that others bid too low. So low, she argues, that the amounts bid should shock the conscience of this Court. Upon that record, Plaintiff now asks equity to undo that which she caused to be done in the first instance. Case No. 15460, R., p. 90 (emphasis added).

Putting aside for now Judge Workman's construction of the all-important Partition Order where his involvement was only to sign it, we can, so unburdened, proceed with the review which we would have made initially had we not deffered as we did.

Of singular importance, Carmen Suchan's divorce complaint, after listing all of the community real and personal property, alleged that it "should be appraised, evaluated, and divided between the parties hereto equally. . . . Any outstanding indebtedness of the community should be retired, from the community assets, prior to division of the community property between Plaintiff and Defendant." And such, too, was a prayer of the complaint. The answer of George Suchan requested that in the event of a divorce being granted that there be "an equitable division made of the community property under such terms and conditions as will preserve the defendant's ability to provide for himself and his children.",

The trial court magistrate, Judge Workman, notwithstanding that both parties requested an equitable division (George), or an equal division (Carmen), in the March 22, 1982, decree of divorce as to approximately $800,000 worth of realty, left the parties almost exactly as he found them, in a co-tenancy situation, each now owning as his or her sole and separate property, an undivided one-half interest in what before the judge's signature had been community-owned real property. Although the prayer of both parties was for a property division which would completely free each from the other, the divorce decree simply removed the community-owned status of the property and left them still as tenants-in-common of the real property which both had asked to have divided — the most important issue in the controversy, disregarding child custody, a separate issue which was also contested.

Responsive to no corresponding prayer by either party, and with Judge Workman's decree giving no guiding directions, $800,000 of real property was ordered to be "placed for sale and sold at the earliest date, and in a manner calculated to derive the maximum available proceeds for distribution between the parties hereto." R. (Sup.Ct. No. 14890), p. 87.

BUT, Judge Workman's decree also contained the provision which would lead to the involved litigation now before us for resolution:

IT IS FURTHER ORDERED that if partition of the property appears more feasible and necessary to effect the efficient distribution of the community property between the parties, the Court will undertake the partition of the real and personal property of Plaintiff and Defendant upon motion of either of the parties hereto. Id.

Under that state of affairs, it was foreseeable that both parties would pursue a more final resolution of their affairs than the divorce decree provided. While Carmen was the first to again ask for an equal property division, which she did immediately on April 27, 1982, after George's post-judgment motions for amendment of the findings and conclusions had been heard and denied, George's proposal was in the court's hands two days later, also seeking an equal division. Both proposals on their face were eminently fair, being based on prior evaluations set by the divorce decree. Approval of either proposition, George's or Carmen's, would have completely freed the parties from each other. After Mr. Richard Smith had presented Carmen's proposal and Mr. Laurence Duffin had presented George's proposal, two days later Mr. Roger Ling appeared in the case for the first time as attorney for George and proposed an unequal division of the property. It was here for the very first time that Judge Workman was so propositioned, and where the unequal division of real property in George's favor would necessitate an offsetting compensating monetary exchange to Carmen in order to balance the equation.

Under George's proposal submitted by Mr. Ling, Carmen would receive less real property than under either of the first two proposals, but would receive $185,537.76 — which would be paid thusly:

(e) Payment by defendant to plaintiff, payable in not less than one year, nor more than ten years in ten equal annual installments, with interest thereon at the rate of 12% per annum, secured by a mortgage on Section 16 property to be awarded to defendant. Case No. 14890, R., p. 102 (emphasis added).

Mr. Ling, in submitting George's second proposal, accompanied it with a written statement of reasons why it was equitable and just. It was apparently an argument which was in and of itself convincing, and if not, then was further buttressed by Mr. Ling's argument at the hearing held on the partition proposals on April 30, 1982. Judge Workman took the matter under advisement, stating that "Mrs. Suchan will get her fair share and Mr. Suchan will be allowed to continue farming," R., p. 111, which oral statement by the court is found incorporated into what might be called the preamble to the partition Order of May 10, 1982, set out infra, at 132, 741 P.2d at 1319. In the argument portion of Mr. Ling's written proposal on behalf of George, he advanced the proposition that it would enable George:

to proceed with his livelihood, and thereby allow him to pay the child support ordered by the court to be paid. By allowing defendant to be awarded the Section 16 land, he will be free to make arrangements with his brother in regard to the well located on this property that was drilled by his brother but is not now used.

3. The division of farm machinery is based upon the farming needs of defendant. The proposed division of farm machinery represents an equitable division of that machinery and will allow plaintiff to proceed to sell the portion of machinery awarded to her in such manner as she may desire. It should also be pointed out that the values of this machinery were the values established by plaintiff and she should therefore have no complaint in regard to the value of that property awarded to her. Of course, if defendant is not awarded a sufficient real property to justify his farming operations, he would have no reason to retain the farm machinery that defendant has requested be awarded to him.

4. Any attempt to segregate irrigated ground from dry land located in the same section or quarter-section would create a substantial reduction in the value of the dry land. In addition, the costs of development of the dry land without the contiguous irrigated land would substantially increase the cost of this development. George's second proposal, Case No. 14890, R., p. 104.

After the Partition Order came into existence on May 10, then, when on July 12th Carmen sought an order to show cause which would require George's compliance with the court's order of May 10, 1982, she supported it with an affidavit (never contradicted by affidavit or testimony, but in fact supported by the remarks of Judge Workman himself), a paragraph of which contains the explanation of the genesis of the Partition Order which Judge Workman would sign, although not at all his own work product:

6. The motion on partition was heard on the 30th day of April. On the 3rd day of May, 1982, prior to entry of a Partition Order by the Court, the Plaintiff agreed to an offer made by the Defendant which was conveyed to the Court as settled and agreed and was incorporated into the Order of Partition, by agreement of the parties, and the Order entered on the 10th day of May, 1982. Case No. 14890, R., p. 129.

The foregoing should serve the purpose of putting in proper perspective the decision of Judge Workman when he would sometime thereafter render his opinion as to the legal effect of the Order of May 10, 1982, where his function was only to sign it on its being represented to him that it was an agreement which had been reached, thereby freeing him from arriving at his own solution to the partitioning issue.

Of that the parties contemplated and the Order provided that George Suchan had to comply with the provisions for creating a documented and well-secured indebtedness to Carmen Suchan in order to obtain title to her undivided one-half interest in the realty and personalty there can be no doubt. It is well illustrated in the opening remarks of the May 10, 1982 order where, after referring to the hearing of April 30, 1982, is this language:

[T]he Court announced at that time that it was the Court's impression that the Defendant desired to continue a farming operation, and that the Court was inclined to so partition the real estate to allow the Defendant to continue, subject to the Defendant's undertaking and carrying out appropriate arrangements for acquisition of the Plaintiff's undivided one-half (1/2) interest in the community property of the parties, which would provide her appropriate financial flexibility and security therefore. Case No. 14890, R., p. 111-12 (emphasis added).

Paragraph 4 of that May 10 order provides a summary of what the order would accomplish, which paragraph, for clarity and easier comprehension, sentence by sentence, is as follows:

1. The Court determines that the net community interest of each party, to be divided through this partition, is the sum of $445,844.40.

2. The Court, at this juncture, has distributed in kind to the Plaintiff machinery and household goods totalling $72,105.00 (excluding the home representing the community lien).

3. The Defendant, on the other hand, has received, under the provisions of this partition, all of the farm real estate, one-half (1/2) of the machinery, all of the cattle and commodities, one-half (1/2) of the household goods, and one-half (1/2) of the community lien on Defendant's separate property.

4. The Defendant takes the community interest distributed to him subject to the outstanding indebtedness against the community.

5. The balance of the Plaintiff's community interest after deducting the machiner and household goods is in the sum of $373,739.40 which shall be paid by the Defendant to the Plaintiff as follows: R., p. 118, Partition Order of May 10, 1982.

Immediately following the foregoing paragraph is that paragraph of the Order which does constitute a monetary judgment, concerning which there can be no doubt (nor does there seem to be any): " DEFENDANT IS ORDERED TO PAY TO THE PLAINTIFF the sum of $100,000.00 cash within forty-five (45) days of the date of this order."

The Order then proceeded to outline the terms and manner by which the $273,739.40 balance of the purchase price to be paid for Carmen's community interest was to be documentarily evidenced and secured, and the terms of payment:

The balance of the Plaintiff's community interest in the sum of $273,739.40 shall be paid to the Plaintiff by the Defendant in twenty (20) annual installments, bearing interest at the rate of TWELVE PERCENT (12%) per annum, and amortized over said 20-year period. The first annual payment shall fall due one (1) year from the date that the down payment of $100,000.00 is paid, or as the parties may agree. The balance shall be reduced to a promissory note restricting any advance payment in the first three (3) years thereof, with full right to prepay thereafter, to be secured by a real estate mortgage on all of the real property awarded to the Defendant, in addition to security instruments on the irrigation equipment located on the irrigated ground, and such other security measures for protection of the Plaintiff's interest that appear appropriate.

The note and mortgage shall be escrowed, with an escrow holder selected by the Plaintiff, together with the security instruments and a satisfaction of the mortgage to be held thereby until full payment of the note, both principal and interest, has been made. (Emphasis added.)

The body of the order was equally clear and unmistakable:

(b) TO THE DEFENDANT:

(1) The Defendant is awarded as his sole and separate property the following real estate, subject to his payment of all outstanding encumbrances thereon, and the payment and security provisions hereinafter required to be made by him for and on behalf of the Plaintiff.

TOWNSHIP 8 SOUTH, RANGE 22 EAST OF THE BOISE MERIDIAN, MINIDOKA COUNTY, IDAHO

Section 16: W 1/2

[Balance of descriptions of other properties omitted.] R. (Sup.Ct. No. 14890), p. 117.

The final paragraph of that order reads:

7. IT IS ORDERED that each of the parties shall execute and deliver the necessary instruments of title, to the real and personal property, each to the other, as necessary to fully carry out the partition and distribution as herein provided. Id. at 120.

"Subject to," of course, is a phraseology of art, and in the context here used can only mean contingent upon, conditioned on, or provided that. See Barton's Legal Thesaurus, Deluxe Edition 1980, p. 982, "contingent" at p. 624; Black's Law Dictionary, 5th Edition 1979, for the same words, pp. 1278 and 290, respectively. The Order in question, as drawn by counsel, agreed to, and thereafter signed by Judge Workman would immediately continue in the possession of George Suchan practically all that which originally had been the entire community property, and then cotenancy estate, and George in return had an immediate money judgment against him for $100,000, with 45 days in which to pay it. The parties were both under direct order of the court to execute all necessary documents and instruments to effectuate the agreement whereby Carmen would deed to George her cotenancy ownership in the realty, and George would simultaneously purchase from her by means of a note and mortgage upon all ownership in the realty.

By way of analysis, while Carmen and George remained married, neither individually had a separate marketable interest in any of their community property. All that either of them had was an interest which has been described as a moiety. Kohny v. Dunbar, 21 Idaho 258, 121 P. 544 (1912). The moiety of each becomes a separate estate of either only on a divorce or upon the death of one spouse.

Upon the entry of the decree of divorce, the Suchan property ownership was changed from community into two separate undivided one-half interests. Each was free to sell that undivided one-half interest for which, however, there is ordinarily no market. Moreover, and standing in the way, the terms of the divorce decree strangely ordered that the property now owned in co-tenancy would be forthrightly sold. If sold for cash, both Carmen and George would expect to suffer losses. If sold on a contract, George would be deprived of what had been his lifetime work, and, worse yet, if the buyer defaulted, the divorced couple would once again be thrown together as co-tenancy owners of a large farm.

That being the existing state of affairs, it is readily understood why George and his attorney would make the proposition to Carmen and her attorney, and why they accepted — everyone having been well-advised by Judge Workman of his predisposition to set over to George the farm real estate as he had so announced at the hearing where there had been placed before him — not just Carmen's partition proposition for an even division, but also George's first proposition for an even division, and also a second George proposition where he would be buying out Carmen's undivided one-half interest in most of the real property. The second proposition advanced by George through Mr. Ling, with modifications, would serve as the basis of the pattern for the buyout later submitted to the court for signature. George's proposition was that the net property value was $891,688.80, and the interests of Carmen and George were each $445,844.40. Under it, Carmen would have received George's interest in a certain quarter-section, thereby solely owning a property worth $184,000. George would then pay her another $185,537.76. This would be paid, as stated in the proposal:

Payment by defendant to plaintiff, payable in not less than one-year, nor more than ten years in ten equal annual installments, with interest thereon at the rate of 12% per annum, secured by a mortgage on Section 16 property to be awarded to defendant. R., Case No. 14890 (augmented to No. 15460), p. 102.

Judge Workman, after having signed the Partition Order, would later, as observed supra, appear in part to infer that Carmen was at fault for having responded to his invitation to act as partitioner — notwithstanding that both parties did so, and notwithstanding that it was his own definite intimation to the parties that he was inclined to keep the farm intact for George, as argued for by George, which brought about the preparation of the Partition order and its submission to him for signature.

In sum, the Partition Order is absolutely clear and unequivocal. Contrary to what Judge Workman read into it later, it contained no language capable of being construed as awarding Carmen a money judgment for any amount over and above $100,000. There is no language in the Order capable of being construed as judicially impressing a lien in Carmen's favor. The word "lien" is not to be found.

The trial court obviously was not in a position to award George the undivided one-half interest in the real property which he owned in cotenancy upon the recording of the divorce decree. Clearly, then, where the Partition Order states that the described real property was "awarded as his sole and separate property" was Carmen's undivided one-half interest that flowed to her by the decree of divorce. That is clear. What is equally clear is that the quoted language was not freestanding, but specifically conditioned by the language prescribing George's obligation to furnish Carmen with a $273,739.40 note, "to be secured by a real estate mortgage on all of the real property awarded to the Defendant."

The transaction was purely and simply for the sale by Carmen and the acquisition by George of Carmen's cotenancy real ownership. It could have as easily been of a transaction of the parties without involving the court at all, and the parties could have so advised the court, and dismissed the partition proceeding. George would have signed two notes, one a 45-day note unsecured, and the other larger note for the balance secured by the same mortgage called for in the Partition Order — all properly escrowed, with Carmen's mortgage from George and Carmen's deed to George being recorded simultaneously. Why it was not done in this manner — the most ordinary of real estate transactions — was not understood until oral argument at rehearing, where Mr. Ling explained:

MR. LING: . . . I'll remind the Court that I got into this case after the judgment and decree of divorce had been entered. The purpose of my becoming involved was to appeal that decision because it was questioned whether or not all the property that had been designated as community was in fact community. This Court, as you know, ultimately determined that there was a transmutation by a community property agreement for conveyance of property upon death. The Court determined that that was sufficient to transmute the property to community property.

During the time that that matter was on appeal, the motion for an order of partition was filed by Mrs. Suchan. There was not a stipulation, in all deference to what Mr. Smith has said, as to the terms of the order of partition. There were several agreements or proposals submitted to the court. The court, at the hearing on those proposals, made a determination at the conclusion of the hearing that it did not have — it was not of a disposition to break up the property, was going to and felt that George should continue to have the property to farm and suggested that there be some way for a provision whereby George would, in fact, purchase Carmen's interest.

JUSTICE BISTLINE: Mr. Ling, is there a reporter's transcript to what you've just recited?

MR. LING: Yes, of the judge — I'm sure the judge's remarks —

JUSTICE BISTLINE: I found them in the court minutes, but I didn't find them anywhere in a reporter's transcript.

MR. LING: Well, your Honor, I'm not positive about that because I haven't looked it up, but it was made at the conclusion of the case, and he gave his inclination was not to — and I think that's stated in both briefs — that he did not really want to divest George of the property which he'd been farming. He wanted to give him an opportunity to continue farming and suggested that there be a method to resolve it by his purchasing it. And, as a result, there were some communications and discussion. But, I would advise the Court, I was in a position that we were on appeal and we didn't believe that there was any $373,000 or $400,000 some odd dollars due. We took the position — hey, that's not community property and, Carmen, you don't have an interest. There's no way that I was going to come into court and stipulate that she could have a judgment for x number of dollars. Something was going to take place, though, and we were on appeal. The Order of Partition did come in. We did not object to the terms of the Order of Partition, and, frankly, I believe it's in the record later on, that George attempted to complete and abide by that Order of Partition when we could not get it stayed.

JUSTICE BISTLINE: Before you go ahead with that, I'd like a little bit more clarity on your participation. This document was drawn by Mr. Smith — no argument about that — it was laid on the judge's desk. You saw it. Mr. Smith's brief says that this document was drawn after you had the hearing in front of the judge, that the offer, suggestion, or whatever you want to call it, approach was made by you, and that this was worked out by the lawyers and then taken to the judge and, I assume — did you go to the judge when it was taken?

MR. LING: No, I did not.

JUSTICE BISTLINE: But you knew it was going?

MR. LING: I had not seen it until it was sent to me and taken to the judge simultaneously, but we did not object. I'll admit we did not object. We're not in a position to object because we were on appeal. How was I to come back in and say, your Honor, we want to change it, because we were saying that, hey, you don't have that much coming and you can't come into court and offer something different, or offer a way to resolve something when you don't believe we're on the right premise to begin with. And I guess that's the difficulty in these things taking place and continuing while you're on appeal on the original issue. Oral argument on rehearing, Sept. 2, 1986.

That explanation, while it seems plausible enough, nevertheless leaves the question why the parties could not have documented in the transaction that it would be subject to rescission or modification depending upon the outcome of George's appeal to this Court challenging the trial court's holding that George's separate property had been transmuted into community property of both George and Carmen.

When the same subject had arisen in the trial court, the argument by George's counsel had largely been of the same vein as to what was said, but did not mention the appeal as being a reason for not conceding that it was an agreed or stipulated order which would be presented for the Court's signature. With George Suchan on the stand under examination by Carmen's attorney:

Q. Now, remember how we agreed that you would be able to acquire Carmen Suchan's interest?

A. I don't believe I was (inaudible) on the agreement.

Q. Well, didn't you in conjunction with your attorney stipulate with us as to how you would acquire —

MR. LING: Your Honor, I am going to object to the word "stipulated." There was a proposal which was submitted and proceeded to be given to the Court, and was not in the form of a stipulation. There's no question between counsel — we had made a suggestion as to a possibility of getting a settlement. That was in it. We advised the Court that we had agreed to that. But it was never in the form of a stipulation.

. . . .

. . . [B]ut there was no written stipulation, or no stipulation in open court. It was a situation that we — the Court had indicated what you felt would be done with that, and then we discussed it, and then advised the Court what we felt would be a reasonable method of partitioning the property.

THE COURT: Mr. Smith, what's your position on that?

MR. SMITH: Your Honor, all I am trying to establish is, the partition was an agreed order of partition. Counsel denies that —

MR. LING: Absolutely.

MR. SMITH: — there was an agreed order of partition.

MR. LING: I denied it, Mr. Smith.

MR. SMITH: Well —

THE COURT: All right. Let me —

MR. SMITH: He's not testifying, your Honor.

THE COURT: yes.

MR. SMITH: I am talking about what Mr. Suchan understood.

THE COURT: All right. The way the Court understood the partition order — if this will settle the semantical argument over the word "stipulation," — was, we had an order to show cause. The Court suggested to counsel that the Court desired that Mr. Suchan be allowed to continue in his farming operation, understanding that the plaintiff would have a monetary interest in that farming operation, representing her one-half equity in the community property. And the Court then suggested to counsel that the matter be proposed to the Court in that regard. I then received a partition order. I reviewed that. I did not see any objections from counsel, I did not receive any, and then signed that.

So, I know, probably, the word "stipulate," as that is a term of art in the law, was — is not the right term; that it was a proposal submitted to the Court by the attorneys. And, frankly, I don't know if it is stipulated or not. All I have is just what came as a result of —

MR. SMITH: Let me ask counsel directly. Wasn't it agreed, whether a representative of the Court was (inaudible)?

MR. LING: Yes.

MR. SMITH: Wasn't it — as long as you are testifying —

MR. LING: I am not testifying, Mr. Smith, you understand that?

MR. SMITH: I do realize that.

MR. LING: Okay.

MR. SMITH: Wasn't it your offer of a way to acquire the interest to pay $100,000 and secure the rest of all the property, wasn't that your offer?

MR. LING: That was proposal, yes.

MR. SMITH: And you accepted it —

MR. LING: That's right.

MR. SMITH: — as a method of buying out Carmen Suchan?

MR. LING: As a method, no. As a method to present to the Court as a partition order, consistent with what the Court had indicated it wanted to do; that's right. Partial Transcript of Proceedings, January 17, 1983, pp. 6-10 (emphasis added).

What the parties must face up to is that the Partition Order was never appealed from and never challenged. It has been for over four and one-half years wholly final. Enough has been stated by the trial court and by counsel to establish that its terms were agreed to, and it was understood that it would be presented to the court for signature by Carmen's attorney, with the knowledge of George's attorney, and his concession that he did not object to it, nor does he object to it. Undoubtedly, there was a time frame during which either of the parties might have moved to be relieved of it. Undoubtedly, had the appeal in Suchan I gone differently, George would have done so. Had either party sought a stay of further proceedings below, while this Court deliberated upon and decided Suchan I, there is no reason to believe that a stay would not have been granted, provided that Carmen was protected against any loss resulting from George's continuing occupancy and use of the farming property and Carmen's equipment.

CONCLUSION

In sum, it is clear from the foregoing that the Partition Order was executory in nature, contemplating the transfer of Carmen's interest in the real estate to George only upon his providing her with security by way of note and mortgage. Thus, at the time of the execution sale, those events having not yet occurred, Carmen's one-half interest had not yet passed to George, and the writ of execution and notice of levy only operated as to the "right title and interest of the defendant in to the above-described real estate," i.e., George's one-half interest.

Following the rehearing, our only course of action was to make a more thorough review of the record and compare it to our first opinion. Having done so, I find it inconceivable that a majority of the Court prefers to adhere to the views and conclusions earlier expressed, but nevertheless extend credit to the Court for allowing Judge Workman to reconsider in the light of what is just and equitable.

For my part, as appears infra, I would reverse, based on the inescapable conclusion that Carmen is still half owner, and is entitled to an accounting for the five years' use of her property which the present owners of George's one-half have had, meaning his mother and brother. The trial court, in the exercise of its equitable powers, would be remiss in its quest for justice which erases this dark day if it did not ascertain George's involvement in those farming operations, the benefits which have accrued to him, and the taxes paid on those benefits.

APPENDIX