Annest v. Annest, 33478
| Decision Date | 31 May 1956 |
| Docket Number | No. 33478,33478 |
| Citation | 298 P.2d 483,49 Wn.2d 62 |
| Parties | Leonida ANNEST. Appellant, v. Verna B. ANNEST, Respondent . Department 2 |
| Court | Washington Supreme Court |
S. J. O'Brien, Tacoma, Royce & Royce, Seattle, for appellant.
John W. Fishburne, Tacoma, for respondent.
The plaintiff husband brought this action for divorce. The parties were married August 8, 1942, in Louisville, Kentucky. They have four children.
The court awarded a divorce to both parties, made a division of the property, and granted defendant wife custody of the children with an award for child support. Plaintiff does not appeal from his decree of divorce or the property settlement, but from the award of custody and child support only.
The court's finding of fact No. 9 that the respondent wife had committed adultery, constitutes the pivotal fact with which appellant is concerned upon this appeal.
The court found that appellant had threatened respondent and her paramour with criminal prosecution. In cross-examination the respondent, as well as her paramour and his wife, declined to answer questions relating to adultery, upon the ground that their answers would incriminate them. Appellant moved to strike their entire testimony, and the court's refusal to do so is the chief error asserted.
Rule of Pleading, Practice and Procedure 42, 34A Wash.2d 106, which was in effect at the time of the trial and has since been amended, provided:
A witness who declines to answer a proper question upon the ground that it would tend to incriminate him, has not told the whole truth, which his oath as a witness requires. He will not be permitted to testify to part of the truth only. When a party claims the privilege of not answering a proper question, the court may dismiss his action or strike his testimony. This action was not brought or maintained by respondent, and the most the court could have done, therefore, was to have stricken the testimony.
This appeal concerns only the custody and support of the children. That question is not to be determined upon the basis of the rights of the parties or used as a penalty or reward for their conduct. See Norman v. Norman, 27 Wash.2d 25, 176 P.2d 349; Sweeny v. Sweeny, 43 Wash.2d 542, 262 P.2d 207; Olson v. Olson, 46 Wash.2d 246, 280 P.2d 249. Unwise trial tactics by a party can not be permitted to adversely affect the welfare of children.
We agree that the trial court should have stricken the testimony in question, and we disregard it in reviewing the record, which we find supports the decree.
The appellant contends that the evidence preponderates against respondent if the evidence in question is stricken. We do not agree. That...
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