## Facts

- Charles H. Swope and Isabel Swope married July 31, 1976, separated in fall 1980, and Charles filed for divorce on November 17, 1980.
- On January 21, 1981, a magistrate granted Charles partial summary judgment on the divorce issue; the order lacked I.R.C.P. 54(b) certification and property issues remained unresolved.
- While property issues were pending, the parties reconciled and cohabited beginning in August 1981 for about one year, without a ceremonial remarriage.
- After the reconciliation ended, the magistrate ordered Charles to pay Isabel $1,000 per month from community property in Charles’s possession, to be offset against Isabel’s eventual community-property award.
- In February 1984, the magistrate entered findings and a memorandum decision dividing property, including rulings that (a) the January 1981 order did not terminate the marriage or community, (b) certain undistributed/retained earnings tied to Charles’s separate-property business interests were not community property, and (c) a bank account originally separate became community property due to commingling.
- On appeal, the district court held the January 1981 order effectively ended the marriage, remanded for property valuation as of that date, and directed findings on whether the reconciliation created a common-law remarriage.
- Isabel appealed to the Idaho Supreme Court.

## Issues

1. Whether a partial summary judgment granting divorce, without I.R.C.P. 54(b) certification and with unresolved property issues, dissolved the marriage and terminated the community.
2. Whether the parties’ reconciliation and cohabitation required a determination of common-law remarriage.
3. How to characterize (a) undistributed/retained earnings connected to Charles’s separate-property business interests and (b) a commingled bank account, as community or separate property.
4. Whether the magistrate properly treated interim monthly payments to Isabel from community assets as offsets against her eventual community-property distribution.

## Decision

- The court held the January 21, 1981 partial summary judgment was not a final judgment and did not dissolve the marriage or terminate the community; the community continued until entry of the final decree in February 1984.
- Because the marriage was not dissolved before 1984, the court held no determination of common-law remarriage was necessary.
- The court approved the magistrate’s approach to characterization, including treating a sufficiently commingled bank account as community property and recognizing different treatment for partnership-related earnings versus corporate retained earnings.
- The court approved the use of interim payments from community property under one spouse’s control, offset against the recipient spouse’s eventual share, as part of the trial court’s community accounting.
- The court reversed the district court on finality and remanded for further proceedings consistent with its opinion.

## Legal Principles

- A marriage is not dissolved, and the community does not terminate, until entry of a final divorce judgment; a partial summary judgment is not final absent I.R.C.P. 54(b) certification when claims remain pending.
- I.R.C.P. 54(b) permits final judgment on fewer than all claims only with an express determination of no just reason for delay and an express direction for entry of judgment.
- Separate property may be transmuted into community property by commingling when tracing is impracticable.
- For community-property characterization, partnership-related earnings and corporate retained earnings may be treated differently due to differences in control and the legal structure of the entity.
- During pending dissolution proceedings, a trial court may order interim payments from community assets and later offset those payments in distributing community property.

## Conclusion

The Idaho Supreme Court ruled that an uncertified partial divorce summary judgment did not end the marriage or community, making the final decree the termination point; it therefore rejected a required common-law remarriage inquiry and upheld the trial court’s general treatment of commingling, business-related earnings characterization, and offsetting interim payments within the community accounting.


Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (Idaho 1987)