Bartow v. Bartow, 23782.

• Decision Date: 06 December 1932
• Docket Number: 23782.
• Citation: 16 P.2d 614,170 Wash. 409
• Court: Washington Supreme Court
• Parties: BARTOW v. BARTOW.

16 P.2d 614

170 Wash. 409

BARTOW v. BARTOW.

No. 23782.

Supreme Court of Washington

December 6, 1932

Department 1.

Appeal from Superior Court, King County; John A. Frater, Judge.

Divorce action between Arthur F. Bartow and Adelia Bartow, in which Arthur F. Bartow applied for a modification of the interlocutory decree so as to eliminate payment of alimony. From an adverse order, Adelia Bartow appeals.

Reversed with directions.

Nelson R. Anderson, of Seattle, for appellant.

John J Sullivan and Everett O. Butts, both of Seattle, for respondent.

MITCHELL J.

The parties to this action were divorced on the grounds of cruelty. The interlocutory order was entered March 12, 1928 and provides, among other things, that Mr. Bartow should pay Mrs. Bartow $75 alimony per month for six months from March 1, 1928, and after the expiration of the six months 'until the further order of the court the sum of $50.00 per month.' In January, 1932, he applied for a modification of the interlocutory decree so as to eliminate the payment of any alimony alleging: 'That said order was predicated upon the testimony of the defendant to the effect that she was physically incapable of supporting herself or contributing to her own support. That if said testimony was true at the time made, it is now of no force and effect for the reason that such condition, if any defendant had, has ceased to exist. That the defendant is an exceedingly robust and physically strong woman and is earning and capable of earning a sum in excess of $50.00 per month and is capable of entirely supporting herself. That she has no children dependent upon her for support.'

These allegations were denied by Mrs. Bartow. Upon the hearing, counsel for Mr. Bartow stated this to be the issue, and that Mr. Bartow ought to be entitled to at least a reduction in the amount of the alimony.

Oral testimony was introduced, at the conclusion of which an order or judgment was entered, March 2, 1932, that upon the payment of $50 a month for six months, or $300 within ten days, as Mrs. Bartow should elect, all obligations of Mr. Bartow to Mrs. Bartow should cease and terminate. Findings were not made other than recitals in the judgment 'that there are no children of either of the parties hereto,' and that except the $300 now ordered to be paid 'there remains no further cause or justification for the plaintiff's being required to pay to the defendant alimony or support money.' Mrs. Bartow, the defendant, has appealed.

The trial judge in the present controversy did not hear the divorce action. The testimony given in the former hearing is not in the present record. The property awarded to the appellant in the interlocutory decree of divorce was of little value and nonproductive. The findings supporting the interlocutory decree and silent as to any income on the part of the appellant, nor do they mention anything of the condition of her health or ability to earn anything at that time.

In the present hearing, the testimony shows that since the divorce she has occasionally engaged in the pastime of fishing on a stream, or helped row a boat in fishing on the Sound, and has attended dances several times a year; but the testimony also shows that she did the same things to about the same extent Before the divorce. There is no proof that she has been able to work at anything, or that she has engaged in earning anything at work. She is not prepared for any particular kind of work, and the evidence is abundant that for periods of days at a time, frequently, she is wholly unable to do or help about her housework. She has not acquired any property since the...