Chamberlin v. Chamberlin

• Decision Date: 06 May 1954
• Docket Number: No. 32644,32644
• Citation: 270 P.2d 464,44 Wn.2d 689
• Parties: , 68 A.L.R.2d 457 CHAMBERLIN, v. CHAMBERLIN.
• Court: Washington Supreme Court

Page 689

44 Wn.2d 689

270 P.2d 464, 68 A.L.R.2d 457

CHAMBERLIN, v. CHAMBERLIN.

No. 32644.

Supreme Court of Washington, Department 2.

May 6, 1954.

H. A. Davis, Okanogan, for appellant.

John T. Moran, Jr., Oroville, for respondent.

DONWORTH, Justice.

This is an appeal by defendant wife from a decree of divorce awarded plaintiff husband after defendant's application for a thirty-day continuance of the trial was denied.

The parties were married in May, 1917, and lived at Park Ridge, Illinois, for more than twenty years prior to January 30, 1949, when plaintiff left the marital abode. He has not since returned there.

In July, 1951, plaintiff moved to Oroville, Washington, and a year and two days later filed this suit for divorce, alleging his residence in this state for more than one year, that he and defendant had been married in 1917 and had been parents of two children, both then of legal age, that he had sued for divorce in Illinois in 1945 and his wife had cross-complained for separate maintenance, that there was an attempted reconciliation in 1947, that he left her in 1949, and that she had treated him in a cruel manner and subjected him to personal indignities rendering his life burdensome. The complaint alleged in some detail the marital difficulties of the parties and the acts of defendant relied upon as grounds for a divorce.

The complaint further alleged that defendant was gainfully employed and was earning approximately $7,000 per year and was in possession of real property of the parties having an equity worth $18,500.

In order to afford a clear understanding of the basic question presented in this case we find it necessary to set out in chronological order a resume of the proceedings in the trial court.

On November 10, 1952, defendant filed a three-page affidavit in support of her motion for temporary support money, suit money and attorney fees. The statements in this affidavit are in several material respects in direct conflict with the allegations of the complaint. Because the statements in this affidavit as well as the allegations of her answer were later stipulated to be considered as defendant's testimony at the trial we quote two excerpts therefrom as follows:

'* * * that the plaintiff above named on the 30th day of January, 1949, left, deserted and abandoned your affiant and at the time that he left his place of residence in Illinois, he left debts totalling more than $10,000.00, which were obligations of the plaintiff and your affiant, and your affiant has since that time had to pay and is paying upon the indebtedness incurred by the plaintiff. That at the time the plaintiff left, deserted and abandoned your affiant, he took with him all money belonging to the parties, which consisted of approximately $2,700.00, and the plaintiff left your affiant in a destitute condition. That your affiant has no funds or property other than wages which she is earning at the present time and these wages, after deductions clerical assistance, taxes, expenses transportation and meals while at work, amount to approximately the sum of $100.00 per month; that your affiant is of the age of 55 years and is physically unable to be steadily employed and has been advised by a physician to cease employment and take an extended rest; that your affiant is now and has, for the past several years, been suffering from Arthritis of the spine, and her condition is such that it is necessary that an operation be performed in the near future or she will be a permanent invalid. That since the plaintiff left, deserted and abandoned your affiant, she has had to seek employment in order to pay obligations and debts incurred by the plaintiff, and to pay off the mortgage indebtedness existing against the home in which she lives in Illinois, and obligations of the plaintiff's, and your affiant has no funds with which to carry on an effective prosecution of this action and your affiant is in need of funds for her support and care pending the outcome of this divorce action.'

'* * * that your affiant in order to defend the action instituted against her by the plaintiff has had to make a trip from her home in Illinois to Okanogan, Washington, and it will be necessary that your affiant make another trip from her home in Illinois to Okanogan, Washington at the time of trial and bring with her at that time at least two persons to testify as witnesses in her behalf at the trial of the above entitled action; * * *.'

On November 12, 1952, defendant filed an answer in which she denied the allegations of cruel treatment of plaintiff and denied that she was earning $7,000 per year, but alleged her net earnings to be $100 per month. In an affirmative defense defendant alleged that plaintiff had spent and squandered or concealed large sums of money and confiscated large amounts of property to himself, thus depriving defendant of her interest therein. Details in support of these general allegations were set forth. It was further alleged that plaintiff had deserted defendant January 30, 1949, without just and reasonable cause.

The answer concluded with an allegation that defendant was then ill of spinal arthritis and had been advised by her physician that unless she ceased her employment and took an extended rest she might become a permanent invalid.

This answer contained no prayer for relief of any kind,

On December 9, 1952, at the instance of defendant, the case was set for trial on January 28, 1953.

On December 16, 1952, defendant filed another pleading entitled 'Answer to Complaint and Affirmative Defense.' This pleading contained almost the same allegations as the first answer except that it asked for separate maintenance. The prayer is as follows:

'Wherefore, Defendant prays that the plaintiff's complaint be dismissed and that the plaintiff take nothing by reason thereof, and that the defendant be adjudged, entitled to a Decree of Separate Maintenance and that such decree be entered herein and that the Court award to the defendant at least the sum of $125.00 per month from the plaintiff for her support, care and maintenance, and that the Court award to the plaintiff a reasonable attorney fee and Court costs and for such other and further relief as to the Court may seem just and equitable.'

(At the trial upon motion of defendant's counsel all reference to separate maintenance was stricken from this answer and we need give that phase of the case no further consideration on this appeal.)

The affirmative matter in the answer was denied in plaintiff's reply.

On the evening of January 22, 1953, defendant telephoned from Illinois to her attorney at Okanogan, Washington, advising him that she had been stricken with influenza, was confined to her bed under the care of a physician and that it was physically impossible for her to be present at the trial on January 28. Her attorney on January 26 filed a motion for a continuance, supported by his affidavit reciting these facts and further stating that his client had confirmed her telephone statement to him by telegram and that she had agreed to furnish additional affidavits from herself and from her physician in support of the motion for a continuance.

On January 28, 1953, the trial date, the motion for a continuance was argued briefly when the court opened in the morning and the court continued the hearing until the afternoon session so that defendant's attorney might see if he received any affidavits from defendant in the morning's mail.

At 1:45 p. m. that day the motion was argued again after defendant's attorney had presented to the court her affidavit reading as follows:

'That she is the defendant named in the above entitled action; That she is a resident of the city of Park Ridge, Illinois; That last Wednesday, January 21, 1953, plaintiff [defendant] suffered an attack of influenza, from which she still suffers. That said influenza has aggravated the spinal arthritis condition and has incapacitated her. That she is presently under the care of Dr. Helen Button, M. D. of Chicago, Illinois. That she has been instructed to rest, and avoid all unnecessary exertion, and she has been specifically instructed not to attempt to travel at the present time, as any exertion may cause irreparable damage to her health. That affiant has been advised that this action has been set for trial on January 28th, 1953.

'That, because of her present illness, she cannot be present in Okanogan, Washington on said date, and has been advised not to attempt said trip for at least 30 days. That affiant respectfully request a continuance of said trial until after February 28, 1953.'

Defendant's counsel also submitted to the court a letter purportedly written by a Chicago law firm addressed to him stating that defendant was ill and had been advised by her doctor not to travel and enclosing a statement purporting to be written by defendant's doctor on a doctor's prescription blank, stating that defendant 'is physically ill and unable to travel.' The letter closed with an offer by the Chicago attorney to assist defendant's counsel 'as much as possible in regard to the defense of this suit.'

After defendant's attorney completed his argument in support of the motion for a continuance, plaintiff's counsel offered to stipulate that defendant, if present, would testify to the matters set out in her answer. The trial court then said:

'The Court: I think that matter there might be something, Mr. Hancock, for the court to take in consideration in determining whether a continuance should be granted or not. In other words, if the plaintiff is conceding that if the defendant were present that she would testify to the facts set forth in these affidavits and in her answer and affirmative defense here, without conceding, of course, that those are true, what is to be lost by proceeding with the trial of the case?'

After referring to another matter the court denied defendant's motion for a thirty day continuance,...