Cohn v. Cohn

• Court: Washington Supreme Court
• Writing for the Court: [4 Wn.2d 323] SIMPSON, Justice.
• Citation: Cohn v. Cohn, 103 P.2d 366, 4 Wn. 2d 322 (Wash. 1940)
• Decision Date: 13 June 1940
• Docket Number: 28014.
• Parties: COHN v. COHN.

103 P.2d 366

4 Wn.2d 322

COHN v. COHN.

No. 28014.

Supreme Court of Washington

June 13, 1940

Department 1.

Action by Blanche Cohn against Reuben Cohn for separate maintenance wherein defendant cross-complained for a divorce. A divorce was denied, and from a decree granting plaintiff separate maintenance and providing for a division of the community property and the disposition of defendant's future earnings, defendant appeals.

Reversed with instructions.

Appeal from Superior Court, Thurston County; John M. Wilson, judge.

George F. Yantis, of Olympia, and Bayley & Croson, of Seattle, for appellant.

Neal Brodie & Trullinger, of Olympia, for respondent.

SIMPSON, Justice.

This action was instituted by plaintiff to obtain a decree for separate maintenance on the ground that the defendant was living separate and apart from plaintiff without fault on her part. Defendant, by cross-complaint, sought to obtain a decree of divorce.

On trial of the cause the prayer of the defendant for a divorce was denied, and a decree of separate maintenance granted. The decree further provided for a division of the community property and the diposition of the future earnings of the defendant.

Defendant has appealed.

The errors urged are in denying a divorce to appellant, in entering judgment for division of the community property, and in attempting to fix the status of the future earnings of the parties.

The court found:

'That plaintiff has endeavored to be a loving and dutiful wife and defendant failed to prove that plaintiff had been nagging and disagreeable in her treatment of him; that the physical difficulty complained of by defendant in his cross complaint has been cured by a surgical operation and such impediment no longer exists.

'That at the time of the separation and continuing down to the time of trial both plaintiff and defendant have been nervous and highstrung; that defendant refuses to return to the home and live with plaintiff; that plaintiff has, however, given defendant no cause for divorce; that by reason of the mental condition of the defendant and his present attitude towards plaintiff it would be impossible for parties to live together.'

We feel it unnecessary to set out the evidence produced in court concerning the troubles which existed between appellant and respondent. It is sufficient to say that we have read the contents of the pleadings and the statement of facts, and agree with the findings of the trial court, with respect to denial of the prayer for divorce and the grant of a decree of separate maintenance, based as they were upon conflicting testimony.

The next question concerns that portion of the decree which makes a division of the community property and provides for the disposition of the future earnings of the parties. The statutes of this state do not give the courts power of authority to entertain actions for separate maintenance. The authority of the courts to try and dispose of such actions is derived from their equitable powers. Kimble v. Kimble, 17 Wash. 75, 49 P. 216; State ex rel. Young v. Superior Court, 85 Wash. 72, 147 P. 436; Larson v. Larson, 106 Wash. 305, 179 P. 841.

In Kimble v. Kimble, supra, and Branscheid v. Branscheid, 27 Wash. 368, 67 P. 812, we upheld the right of the superior court, in an action for separate maintenance, to determine the status of the property, that is, to ascertain which property belonged to the community and which was the individual property of each spouse.

In Buttnick v. Buttnick, 121 Wash. 211, 209 P. 6, and Manggaard v. Manggaard, 179 Wash. 232, 36 P.2d 811, this court held that the trial court had the power and authority to compel obedience to its decree of separate maintenance by impressing a lien upon the community property.

Separate maintenance is the allowance granted to a wife for the support of herself and children while she is living separate and apart from her husband. The right to separate maintenance is grounded upon the fundamental legal duty of the husband to support his wife during the time that the marriage relation exists. Though a legal separation has been decreed, the marital relation still exists. It anticipates that a future reconciliation may be brought about. It is otherwise where a divorce has been granted. In such case the marital relation is dissolved and the husband, aside from the support commanded by the decree, is not compelled to care for his former wife.

The author in McKay on Community Property, 2d ed.,...