Browning v. Browning, 33065

• Decision Date: 28 April 1955
• Docket Number: No. 33065,33065
• Citation: 46 Wn.2d 538,283 P.2d 125
• Court: Washington Supreme Court
• Parties: Mabel Cheney BROWNING, Respondent, v. Quentin Victor BROWNING, Appellant.

Page 538

46 Wn.2d 538

283 P.2d 125

Mabel Cheney BROWNING, Respondent, v. Quentin Victor BROWNING, Appellant.

No. 33065.

Supreme Court of Washington, Department 2.

April 28, 1955.

George H. Crandell, Seattle, for appellant.

Gates, Montgomery & Onstad, Seattle, for respondent.

ROSELLINI, Justice.

Respondent instituted this action for divorce on September 22, 1953. Her complaint contained allegations that the parties were married on April 2, 1952, at Seattle; that certain properties which she itemized were acquired by her before the marriage; that there was no issue of the marrige; and that the appellant had been guilty of physical cruelty toward her. Appellant cross-complained, asking a divorce on grounds of mental cruelty. Insofar as they are material to this appeal, his allegations were that the parties first began to live together in 1943 and agreed at that time to pool their earnings; that they were married in 1946; that in 1950 respondent went to Nevada and, while still a bona fide resident of Washington, obtained a Nevada divorce; that the parties were reconciled in September, 1951, and remarried April 2, 1952; and that they had pooled their earnings since 1943 and invested them in properties taken in the name of respondent.

The court found, among other things, that the parties were married in 1952; that prior to their marriage the respondent had acquired the property listed in her complaint; and that the appellant had failed to substantiate the allegations contained in his cross-complaint. The divorce and all of the property except the appellant's jewelry and other personal effects were awarded to respondent.

This appeal is based upon four assignments of error, which we set forth verbatim:

'1. The court erred in refusing to hold the Nevada decree of divorce obtained by the respondent, null and void.

'2. The court erred in holding that the parties were married on the 2nd day of April, 1952, there by inference holding that the Nevada decree was valid.

'3. The court erred in refusing to divide the property accumulated by the parties since April, 1943.

'4. The court erred in failing and refusing to divide the property of the parties between the parties and in leaving the parties where he found them.'

Reference to Rule on Appeal 43, 34A Wash.2d 47, as amended, effective January 2, 1953, will reveal that none of these assignments is sufficient to attack the court's findings. Further, we have held that an error assigned to a 'holding' will be treated as an objection to conclusions of law rather than to findings of fact. Becwar v. Bear, 1952, 41 Wash.2d 37, 246 P.2d 1110. The court's findings, therefore, have become the established facts of the case. Vander Meer v. Belk, Wash.1954, 275 P.2d 436; Simpson v. Hutchings, 1952, 41 Wash.2d 287, 248 P.2d 572.

While it may be argued that the finding that the parties were married in 1952 is, in fact, a conclusion of law, due to the implied holding that the Nevada decree was valid, it is supported by the trial court's finding that the appellant failed to substantiate the allegations of his cross-complaint. One of these allegations was that the respondent was a resident of the state of Washington at the time the Nevada divorce was obtained; and it is upon this alleged fact that appellant bases his argument that the Nevada divorce decree was invalid.

While we are bound by the court's finding that the major portion of the property was acquired by respondent before the marriage, we have examined the record and find no showing that appellant contributed in any way to the acquisition of this property. During the ten-year period involved in this suit, appellant was twice confined and spent a total of approximately four years in the federal penitentiary. When not in the penitentiary, he was engaged in the business of peddling narcotics, as was respondent, who also served a fourteen months' sentence. Respondent's chief occupation, however, appears to have been the management and operation of houses of prostitution.

No evidence was offered as to the disposition of the proceeds from the sale of narcotics. While two checks representing appellant's golf-gambling winnings were endorsed by respondent, she testified that she merely cashed them for appellant and did not use the proceeds herself. The checks, dated in 1953, totaled only one thousand one hundred seventy-five dollars, whereas the property was valued in excess of thirty-five thousand dollars and was acquired prior to 1953.

The properties were all acquired in the name of respondent. Had the court concluded that the Nevada divorce was void, there was substantial evidence to justify a finding that the property, even though acquired during the existence of the community, was purchased with funds derived from respondent's independent enterprises. The court's memorandum opinion indicates that the question of the validity of the Nevada divorce decree was considered immaterial, as in fact it was, and that the court had in mind all of the activities of the parties during the ten years of their association. The Nevada decree, in fact, makes no mention of the property of the parties and does not purport to dispose of it.

There being no error assigned to any finding of fact, our inquiry is limited to whether the findings...