Appleton v. Appleton

• Decision Date: 05 July 1917
• Docket Number: 13824.
• Citation: 97 Wash. 199,166 P. 61
• Parties: APPLETON v. APPLETON.
• Court: Washington Supreme Court

166 P. 61

97 Wash. 199

APPLETON v. APPLETON.

No. 13824.

Supreme Court of Washington

July 5, 1917

Department 1. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by Wilbur H. Appleton against Adelaide Appleton. From an adverse judgment, plaintiff appeals. Reversed and remanded for new trial.

Robertson & Miller and Rosenhaupt & Grant, all of Spokane, for appellant.

Merritt Lantry & Merritt, of Spokane, for respondent.

MORRIS J.

Appeal from a judgment dismissing the complaint in an action for divorce. The complaint after stating the jurisdictional facts alleged that the parties hereto had not lived together for a period of three years; that in the month of June, 1914, an action for divorce was started by the wife, the husband filing an answer and cross-complaint; that the wife thereupon withdrew her complaint for a divorce and asked for separate maintenance; that upon the hearing the wife's prayer for separate maintenance was granted and a divorce denied the husband upon his cross-complaint. It was further alleged that the parties had quarreled repeatedly before the commencement of the first action in 1914, and that owing to such repeated quarrels rendering life burdensome to the plaintiff the parties could no longer live together as husband and wife. At the hearing the complaint was amended to the effect that shortly after the entry of the separate maintenance decree in June, 1914, the plaintiff in good faith called upon the defendant and requested her to return to him that she refused to do so. Upon the hearing motion was made for dismissal of the action on the ground that the complaint was insufficient to support a decree of divorce. This motion was granted by the lower court seemingly upon the theory that the separate maintenance decree of June, 1914, was res judicata.

That decree was undoubtedly res judicata as to all matters occurring between the parties up to that time. It was also conclusive of the fact that appellant was in fault, and because of such fault respondent was entitled to live separate and apart from him. Loeper v. Loeper, 81 Wash. 454, 142 P. 1138. In so far as the complaint sought to review the issues of the former suit, it was undoubtedly bad and subject to attack. It was good, however, as to allegations of misconduct occurring subsequent to the entry of the first decree. That decree could not bar subsequent misconduct on the part of either party, and any such conduct falling within the statutory grounds for divorce would entitle the party not at fault to commence divorce proceedings.

This complaint alleged that subsequent to the entry of the separate maintenance decree the appellant in good faith requested the respondent to return to him; that she refused desiring to live apart from him under the order of separate maintenance. In determining the sufficiency of the complaint it must be accepted that the husband was honest in his intention to...