Callahan v. Callahan

• Court: Washington Supreme Court
• Writing for the Court: BEALS, Justice.
• Citation: Callahan v. Callahan, 131 P.2d 731, 15 Wn.2d 628 (Wash. 1942)
• Decision Date: 11 December 1942
• Docket Number: 28730.
• Parties: CALLAHAN v. CALLAHAN.

131 P.2d 731

15 Wn.2d 628

CALLAHAN v. CALLAHAN.

No. 28730.

Supreme Court of Washington

December 11, 1942

Department 2.

Action for divorce by Katherine Marie Callahau against Cecil Lee Callahan wherein after a final divorce decree was entered defendant filed a petition for modification of the interlocutory decree whereupon plaintiff filed a petition asking that she be awarded the realty involved or in the alternative that it should be impressed with a lien in plaintiff's favor. From an order dismissing his petition the defendant appeals.

Affirmed.

Appeal from Superior Court, Snohomish County; Charles R. Denney judge.

Earl W Husted, of Everett, for appellant.

Phil G. Warnock, of Everett, for respondent.

BEALS Justice.

After serving in the United States army during the World War, a considerable portion of his service having been overseas, Cecil Lee Callahan, the defendant in this action, was honorably discharged from the service August 29, 1920. October 16th following, he married plaintiff, Katherine Marie Callahan, in Chicago, Illinois. Later, Mr. and Mrs. Callahan took up their residence in the city of Everett, Washington, and they have since resided in this state. Two children were born to them, Betty and Vivian, Betty, the younger, now nineteen years of age, the elder daughter being married. During the month of August, 1936, Mr. Callahan purchased an improved tract of land in the city of Everett, which the parties occupied with their family as a home.

November 5, 1936, Mrs. Callahan instituted this action, seeking a divorce from her husband, she also asking the custody of the children. Upon trial of the action, an interlocutory decree of divorce was entered, which later became final. The trial court expressly found that the real estate above referred to was owned by the parties as community property. By the interlocutory order, the property was '* * * awarded to the parties to be held by them in common, the plaintiff and children to have the sole use and occupancy of the dwelling on the premises so long as she shall maintain a home for the children therein and while her custody shall continue and she be not married to some other.'

The final decree of divorce, in all things confirming the interlocutory order, was entered September 4, 1937. May 26, 1938, an order was entered restraining Mr. Callahan from visiting the premises which Mrs. Callahan and the children were then occupying, restraining Mrs. Callahan from cutting trees or making alterations in the building, and permitting her to rent a portion of the dwelling.

The question now Before us concerns Mr. Callahan's claim that the real estate belongs to him, and that his former wife should be excluded from all interest therein.

In May, 1941, Mrs. Callahan ceased to reside upon the premises referred to, and moved to Seattle. May 19, 1941, Mr. Callahan filed in the divorce action a petition entitled 'Petition to Restore Property,' praying that the interlocutory order of divorce be modified by declaring that he is the sole owner of the real estate above referred to, and that his former wife be decreed to have no title to or interest in the property.

Thereafter Mrs. Callahan filed her petition, asking that she be awarded the property, or in the alternative, that the same be impressed with a lien in her favor on account of expenditures for taxes and repairs made by her to its benefit.

After a hearing, the trial court dismissed Mr. Callahan's petition, and from this order Mr. Callahan has appealed. He will hereafter be referred to as appellant, and Mrs. Callahan as respondent.

Error is assigned upon the dismissal of appellant's petition; upon the refusal of the trial court to enter judgment in his favor; and upon the ruling that the title to the real estate had been adjudicated in the interlocutory order entered in the divorce proceeding.

Respondent's brief contains some reference to a transcript prepared at her order for use on this appeal, but no such transcript appears in the record.

It is apparently conceded that the real estate above referred to, and which is the subject matter of this proceeding, was purchased wholly or principally by appellant with money which he received from the United States government by way of adjusted service in the World War. Appellant contends that for this reason the property has always belonged to him as his separate property, and that in the divorce case the trial court erred in finding that the property belonged to the community composed of appellant and respondent as husband and wife, and in awarding the property to the parties as tenants in common, instead of adjudging the property to be appellant's separate estate.

If we understand correctly appellant's theory, he contends, first, that the property was in its inception his separate estate because purchased with money received as above stated, and that the trial court had no right to find that the land was community property, and that, in any event, when respondent moved away from the property, the ownership thereof should, in some manner revert to him. As the court, in the order appealed from, dismissed appellant's petition, it was probably deemed unnecessary to refer in the order to respondent's answer to this petition and to the relief which she prayed for in her answer.

Appellant relies upon the following Federal statutes: 38 U.S.C.A. §§ 454a and 686c. By the first section referred to, it is provided that...