Cooper v. Cooper

• Decision Date: 20 February 1928
• Docket Number: 20849.
• Citation: 264 P. 1,146 Wash. 612
• Parties: COOPER v. COOPER.
• Court: Washington Supreme Court

264 P. 1

146 Wash. 612

COOPER v. COOPER.

No. 20849.

Supreme Court of Washington

February 20, 1928

Department 2.

Appeal from Superior Court, King County; Frater, Judge.

Suit for divorce by Grace May Cooper against William Leon Cooper. Decree for plaintiff, and defendant petitions for modification thereof in regard to alimony. From a judgment dismissing the petition for modification, defendant appeals. Affirmed.

Louis E. Shela, of Seattle, for appellant.

Robert A. Devers, of Seattle, for respondent.

ASKREN J.

Appellant instituted this proceeding to have the court modify the original decree in a divorce proceeding, and relieve him from the burden of paying the sum of $25 per week to the respondent. Appellant alleged a change of condition and set up facts which we will assume were sufficient, if established, to justify the court in modifying the decree, if it had power so to do.

At the time of the divorce, the custody of the minor child of the parties was awarded to the respondent. She was also given certain real property and an allowance of $25 per week. Whether this allowance was for the support of the minor child or for the respondent as a property settlement is the pivotal question in the case. The trial court held it to be a property award, and deeming itself without jurisdiction dismissed the action. Our decisions uphold the view, and it is so conceded by appellant, that, if the allowance was a property settlement, the court had no power to change it. Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L. R. A 1917F, 721. The material parts of the decree are as follows:

'It is further ordered, adjudged and decreed that the custody of William Morris Cooper, the son of the parties to this action, be, and the same hereby is, awarded to the plaintiff, subject, however, to the right of the defendant to see and have said child at any and all reasonable times defendant to contribute to the support and education of said child until the further order of this court. * * *

'It is further ordered, adjudged, and decreed that plaintiff have and recover of and from the defendant and his estate the sum of $25 per week (to cease in case of her remarriage) for her support and maintenance, payable on the first day of each and every week, and that the said amount awarded shall be lien upon the property of the defendant. * * *

'It is further ordered, adjudged, and decreed that the defendant be, and he hereby is, directed and required to pay the plaintiff on the first day of each and every week hereafter (unless plaintiff shall remarry) the sum of $25 as alimony, and to pay to the Prudential Life Insurance Company the premiums upon said policy until the same shall mature and assign said policy to the plaintiff.'

It will be seen...