Barker v. Barker, 30451.

• Decision Date: 23 September 1948
• Docket Number: 30451.
• Citation: 31 Wn.2d 506,197 P.2d 439
• Court: Washington Supreme Court
• Parties: BARKER v. BARKER.

197 P.2d 439

31 Wn.2d 506

BARKER v. BARKER.

No. 30451.

Supreme Court of Washington

September 23, 1948

Department 1

Action by Donald E. Barker against Phyllis Barker for annulment of their marriage and custody of minor child, wherein defendant answered asking for custody of the child. From those portions of decree of annulment in which the court assumed jurisdiction of the minor child and limited defendant's custody until further order of the court and awarded plaintiff rights of visitation and right to have child with him once a month, during August of each year and on certain holidays, defendant appeals.

Decree affirmed.

Appeal from Superior Court, King County; Chester A. batchelor judge.

Guy E Dunning, of Seattle, for appellant.

Cowan Haugan & Holmes, of Renton, for respondent.

SCWELLENBACH Justice.

At about eleven-thirty in the morning, on May 2, 1942, Phyllis Peterson arrived in Tacoma, from Bellingham, with an aunt and with the purpose of being a witness to her aunt's marriage to a soldier. The aunt's fiancé arrived from Fort Lewis about seven o'clock that evening, accompanied by another soldier, one Herman W. Schuessler, who was to be his buddy's witness. Miss Peterson had previously met Schuessler in Bellingham. By nine o'clock Schuessler and Miss Peterson had obtained a marriage license and a three-day waiver, and both couples were married by a justice of the peace. About midnight some MP's picked up both of the soldiers and they were taken back to camp and shipped to Alaska.

A couple of months later, while working in Seattle, Phyllis Schuessler was introduced to a man named Johnston, who claimed to be a lawyer from Everett. Johnston did not maintain an office in Seattle. His quarters were in the Ben Paris Recreation establishment. He called her down there and asked her some questions and then informed her that he could get her an annulment for $75. She gave him the money and three months later received a brown paper from him which said: 'You are now informed that you are free to marry again,' that 'you have an annulment.' Later she met Barker and they were married in Coeur d'Alene, Idaho on November 7, 1942. A child, Barbara Jean Barker, was born July 13, 1943, as the issue of this marriage.

At the time of the wedding, both she and Barker thought, in good faith, that she was free to marry. Later, some question arose as to the validity of this marriage. Upon investigation, it developed that no attorney named Johnston was registered in Everett, so she commenced divorce proceedings against Schuessler, intending to remarry Barker. The final decree was entered December 21, 1945. In the meantime, trouble arose between the parties, and she decided not to remarry him. As a result, on November 5, 1945, the plaintiff commenced this action for annulment, asking for custody of the child. In her answer defendant asked for custody of the child.

The difficulties between the parties arose in this manner. One evening they went to a dance where beer was served. She was dancing with a sailor and everybody except her and the sailor had left the floor. They remained in the center of the floor kissing each other. (She testified that it was against her will.) At any rate, the plaintiff did not like this performance. He picked her up and carried her to the car. She continually remonstrated and tried to get away. When they got home the quarrel continued, and he pushed her around. They made so much noise that the neighbors called in the police and he was arrested.

The trial court annulled the purported marriage of the plaintiff and defendant; held that the defendant was a proper person to have the custody of the child, and awarded its custody to her 'until the further order of the court, but with reasonable rights of visitation to the plaintiff as follows: the right to have the said child with him once a month, on the second week-end thereof, from Friday evening at 6 P.M. until the following Sunday to be returned by him at 7 P.M., and that he should have the child visit him during summer vacations for at least one month in August. That the plaintiff should also be allowed to have said child on alternate holidays; his first right to have her will be at the Christmas holidays from 5 o'clock December 24, 1947 to 7 o'clock P. M. December 25, 1947; defendant to have her on Thanksgiving 1947 and New Year 1948; thereafter to alternate as above indicated on the holidays of Easter, July 4th, Thanksgiving, Christmas and New Year, defendant to have said child on July 4th., Thanksgiving, 1947 and New Year 1948.'

Defendant has appealed from those portions of the decree in which the court assumes the jurisdiction of the minor child and limits defendant's custody 'until further order of the court,' and awards rights of visition to plaintiff and the right to have the child with him once a month and to have her during August of each year and on certain holidays.

Rem.Rev.Stat. § 983, provides:

'When there is any doubt as to the facts rendering a marriage void, either party may apply for, and on proof obtained, a decree of nullity of marriage.'

Rem.Rev.Stat. § 8438, provides in part:

Marriages in the following cases are prohibited:

'1. When either party thereto has a wife or husband living at the time of such marriage.'

We have held such marriages to be void ab initio. Beyerle v. Bartsch, 111 Wash. 287, 190 P. 239.

The only statute authorizing the court to make disposition of children, as between husband and wife, is Rem.Rev.Stat. § 989, a part of the divorce code. Likewise, only the divorce code provides for modification of decrees of divorce. Rem.Rev.Stat. § 988, amended by chapter 161, Laws of 1947, in matters not material to the question at issue; Rem.Rev.Stat. § 995-2.

It is a well-recognized rule that in actions involving the custody of a child, the welfare of the child is of paramount importance, and this rule applies to illegitimate, as well as legitimate, children. 7 Am.Jur. 668, Bastards, § 60.

Peterson v. Peterson, 164 Wash. 573, 3 P.2d 1007, 1008, was an action for divorce and the custody of a minor child, brought by the husband. The wife filed a cross-complaint, asking for annulment. A decree of annulment was entered. The custody of the child was awarded to the mother and the father was ordered to pay the wife $20.00 per month for the support of the child, until further order of the court. The husband appealed, contending that he could not be...