Blethen v. Blethen

• Decision Date: 30 April 1934
• Docket Number: 24894.
• Citation: Blethen v. Blethen, 177 Wash. 431, 32 P.2d 543 (Wash. 1934)
• Parties: BLETHEN v. BLETHEN.
• Court: Washington Supreme Court

32 P.2d 543

177 Wash. 431

BLETHEN v. BLETHEN.

No. 24894.

Supreme Court of Washington

April 30, 1934

Department 2.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Action for divorce by Alice C. Blethen against Francis A. Blethen in which a divorce was granted and judgment entered for alimony. From orders entered in subsequent contempt proceedings discharging defendant and modifying the divorce decree by reducing alimony payments thereunder, plaintiff appeals.

Decree refusing to hold defendant in contempt affirmed; decree modifying former decree as to alimony reversed and awards reinstated; and motions to dismiss appeal denied.

Ryan, Desmond & Ryan (Ryan, Askren & Ryan) and Howard W. Sanders, all of Seattle, for appellant.

Todd Holman & Sprague and Lowell P. Mickelwait, all of Seattle for respondent.

HOLCOMB Justice.

Such proceedings were had in the above-entitled case as resulted in an interlocutory decree of divorce on July 11, 1930, which decree was made final on January 26, 1931.

During the pendency of the action the parties entered into a stipulation for a property settlement contingent upon a divorce being granted, the terms of which settlement were embodied in the decree. It provided for the payment of permanent alimony to appellant of $150 per month, which was to the increased under certain contingencies, as to which provisions jurisdiction was not retained by the court. The stipulation also made separate provision for the minor child of the parties, as to which provisions jurisdiction was retained by the court.

On June 21, 1933, appellant caused an order to be issued against respondent requiring him to show cause why he should not be punished for contempt for failure to pay alimony as provided in the decree. In answer to this proceeding respondent filed his affidavit in which he alleged that in April, 1933, he had paid appellant $125 and in May and June, 1933, $100 each month. As an excuse justifying his failure to pay the amounts required by the stipulation and decree, he alleged that on June 2, 1931, he had remarried, being at that time free from all debts except such as were contracted in contemplation of his marriage, and was then earning $800 per month, but that in July, 1932, his salary had been reduced to $400 per month and that he and appellant in August, 1932, had orally agreed that he was to pay her one-half of his salary in lieu of the provisions of the decree; that he thereafter paid her $200 per month until his salary was further reduced in November, 1932, to $300, at which amount it has since remained; and that he accordingly paid her $150 per month until April, 1933, when he further reduced his payments to $125 and $100 per month, as heretofore mentioned. He then set forth in detail the birth of a child by his second marriage, the debts contracted since his second marriage, and the amount necessary to support his second family, by which he seeks to show that out of the $300 salary now received by him there remains available for the support of his first family only the sum of $75 per month.

In addition to the affidavit in the contempt proceeding filed by respondent, he filed a petition for modification of the amounts awarded to appellant and on June 28, 1933, caused a show cause order to issue on his petition for modification. He alleged substantially the same facts in this proceeding as he had in his affidavit in the contempt proceeding.

To this petition, appellant served a special appearance moving to quash the service of respondent's petition and order to show cause upon two grounds: First, that the court had no jurisdiction of the subject-matter or of appellant; and, second, that appellant had not been served with a copy of the decree sought to be modified.

Appellant also, without waiving her special appearance, demurred to the petition of respondent on two grounds: First, that the court had no jurisdiction of the subject-matter of the action or of appellant; and, second, that the petition does not state facts sufficient to entitle respondent to the relief sought.

The two matters came on regularly to be heard by the lower court on August 28, 1933, and the lower court filed its memorandum opinion reducing the payments to appellant to $100 per month and on September 9, 1933, entered its order discharging respondent and adjudging him to be not in contempt and also its order modifying the divorce decree by reducing the total payments to appellant for alimony and for the support of her child to $100 per month, from both of which decrees plaintiff appeals.

Respondent opens his brief with motions to dismiss the appeal upon the grounds: First, that it is duplicitous, being taken from two separate judgments entered in two separate and distinct proceedings; and, second, that no appeal bond has been given or filed by appellant as required by law in that the bond filed by appellant is so ambiguous and uncertain as to amount to no bond at all.

There is no merit in the motions to dismiss the appeal, both of the grounds for which are based upon the contention that the appeal is duplicitous.

It is true that we have held in a number of cases that such proceedings are separate proceedings and to be treated as though they were two new, independent suits. Bedolfe v. Bedolfe, 71 Wash. 60, 127 P. 594; Cooper v. Cooper, 83 Wash. 85, 145 P. 66; State ex rel. Buttnick v. Superior Court, 127 Wash. 101, 219 P. 862.

It is however, a proceeding in the same litigation between the same parties. The whole controversy hinged upon the one subject-matter, namely, alimony. There was one hearing Before the same judge of the court. It was a matter of great convenience for the parties and for this court that one appeal was taken and the matters were very distinctly separated in the lower court and...