This divorce action has been before this Court before.
It is a sound rule of practice, and one to which we have long subscribed, that a trial court will restrict its consideration in a remanded action to those questions specified in the mandate and will not reexamine issues already laid to rest by the appellate court affirmance on the preceding appeal.
In our opinion on the first appeal we affirmed all questions raised in the first trial excepting the three issues which we remanded to the district court. That court was, therefore, correct in refusing to go beyond those three questions.
Appellant also assigns as error the finding of the trial court that respondent realized no increased value as a user from any contributions by the community to his separate property home. And she objects to the finding that E.A. Tolman, Inc. owed her only three shares, and not three hundred shares of its stock. There was substantial controversy, with evidence presented by either side, on both of these issues in the district court. We cannot say, based on the cold record before us, that the weight of the evidence so clearly supported either party that he or she should have prevailed as a matter of law on
The final question raised by the appellant concerns the failure of the trial court to award $500 to her in order that her attorney might be reimbursed for having prosecuted her first appeal in this action. The district court, the first time the action was before it, allowed $250 for that purpose. On remand the trial judge refused her motion to order that she receive $500 more for the same purpose, apparently on the assumption that such an award was barred because the issue of attorney fees was outside the mandate which it had received from this Court. As we have said herein, the trial court, on remand, as a general rule may not consider issues precluded by the explicit provisions of this Court's mandate. But a wife has a right to have her interests presented and protected and I.C. § 32-704 contemplates that the husband must, if possible, help to bear the expense of divorce litigation.
I.C. § 32-704 provides that a wife may receive "as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action" while it is "pending." We hold that this divorce action, when it was in the district court on remand from this Court was still "pending" within the meaning of I.C. § 32-704. Because the action was still "pending," the trial court had "jurisdiction" to consider the appellant's motion for attorney fees under I.C. § 32-704. This "jurisdiction," which was a function of the statute, was unaffected by the fact that the mandate of this Court did not mention attorney fees or suit money. The trial court did have the power, therefore, to grant the appellant's motion under I.C. § 32-704.
It is the normal rule that this Court will not set attorney fees unless it is necessary to complete our appellate jurisdiction and that motions under I.C. § 32-704 must be addressed to the sound discretion of the district court.
Judgment on the issue of attorney fees is reversed and remanded in order that the district court enter a judgment for appellant against respondent in the sum of $500 as attorney fees for her first appeal. Otherwise, the judgment of the district court on all issues in this action is affirmed.
Because of our disposition of this appeal appellant's motion in this Court for attorney fees is hereby denied. The judgment as herein modified is affirmed.
No costs allowed.
McFADDEN, C.J., and DONALDSON, SHEPARD and SPEAR, JJ., concur.