115 Idaho 198 - McHugh v. McHugh

How this case has been cited

Cited by 3 later decisions — most recently February 2016

3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

BISTLINE, Justice,

¶1specially concurring.

¶2At one time I, too, had somewhat the same concerns as Justice Bakes and Justice Shepard.

¶3An ounce of caution being worth a pound of cure, by expending a modicum of energy in betaking myself to the clerk’s office, I discovered in the original file a plaintiff’s motion filed in this Court on April 29, 1987, requesting that we temporarily suspend the appeal and remand the case for the purpose of allowing the trial court to pass upon plaintiff’s motions filed in the trial *201court to modify the divorce decree, particularly the property dispositions thereof by including the military retirement benefits. The motion was based upon a statutory change in Idaho law, ch. 68, 1987 Idaho Sess. Laws 122, effective March 24, 1987, and the Uniform Services Former Spouses Protection Act. When the motion came before the Court membership, only two votes, Huntley, J. and Bistline, J. favored the remand. Hence there was none.

¶4Clearly the plaintiff, through her counsel, was correct in seeking the remand so that the trial court would again be vested with jurisdiction to entertain the motion.1 In fact, there was no other course open to the plaintiff. In short, she did all that she could do, and two of the Court members who voted against the remand apparently do not remember — or at least do not mention — that at one time the opportunity was presented to remand the case to the proper court for the resolution of the issues. Today those same two Court members do not agree with the majority’s opinion for the Court.

¶5This may present, if I may coin a phrase, an outstanding example of (certain members of) the judiciary being judicially estopped.

¶6. Prior Idaho case law is convincing that when a given case is pending before the appellate court, all jurisdiction is vested solely in that appellate court, until and unless it remands the case back to the inferior court from which it came.