Corson v. Corson, 33130

• Decision Date: 12 May 1955
• Docket Number: No. 33130,33130
• Citation: 46 Wn.2d 611,283 P.2d 673
• Parties: June E. CORSON, Appellant, v. Richard A. CORSON, Respondent.
• Court: Washington Supreme Court

Page 611

46 Wn.2d 611

283 P.2d 673

June E. CORSON, Appellant, v. Richard A. CORSON, Respondent.

No. 33130.

Supreme Court of Washington, Department 1.

May 12, 1955.

Tyre H. Hollander, Seattle, for appellant.

Jonson & Jonson, Seattle, for respondent.

FINLEY, Justice.

Appellant was granted a divorce from respondent on October 24, 1951. Custody of their one child, then three years of age, was awarded to appellant wife, and respondent was directed to pay one hundred dollars per month toward the child's care, education, maintenance, and support. The decree of divorce contained no prohibition against appellant removing the child from this state, but it did provide for reasonable rights of visitation by respondent. Appellant has now remarried, and is living in Texas. The minor child of the parties it with her. Respondent husband has also remarried and has one child by his second wife. He is also supporting the two children of his present wife by a previous marriage. Respondent made three monthly support payments to appellant, and then quit. On March 8, 1954, respondent filed a petition for modification of the support money provision of the divorce decree. On March 10, 1954, appellant procured an order directing respondent to show cause why he should not be adjudged in contempt of court for failure to make the support money payments provided for in the decree. These matters came on regularly for hearing, and, as a result thereof, an order was entered by the trial court, (1) requiring the respondent to pay ten dollars per month on account of the sum of twenty-nine hundred dollars (the amount of the unpaid support money installment), to avoid being adjudged in contempt of court; and (2) relieving respondent of the duty to make further support money payments until the further order of the court, or until such time as the appellant should return the minor child of the parties to the state of Washington. From this order appellant wife has appealed.

Appellant contends that, insofar as the trial court's order provides for payment by respondent of ten dollars per month on the past-due installments of support money, it is a modification of the obligation due on these past-due installments, because it deprives appellant of her remedies for collection of them. Appellant states, and correctly so, that past-due installments for support money under a divorce decree constitute a fixed obligation, and cannot be modified by any subsequent order of the trial court. Sanges v. Sanges, 44 Wash.2d 35, 265 P.2d 278, and cases cited. However, we do not agree with appellant's contention that the order of the trial court is a modification of respondent's obligation to pay the past-due installments, in that it provides the sole manner by which such installments shall be paid, and thereby deprives appellant of the usual remedies for collection, such as garnishment, attachment, and execution, which otherwise would be available to her. By its very language, the order purports to do nothing more than provide respondent with a means whereby he may purge himself of contempt. In no way does it impair such remedies as may be available to appellant for collection of the past-due installments of support money. We believe this argument of appellant is without merit. The proceeding instituted by appellant was a civil contempt proceeding, addressed to the discretion of the superior court, which, after a hearing, may enter such an order as the court, in the exercise of its discretion, deems appropriate. Lear v. Lear, 29 Wash.2d 692, 189 P.2d 237, and cases cited. We find no abuse of discretion on the part of the trial court in entering that part of the order referred to, which enables respondent to avoid being adjudged in contempt of court.

Appellant next contends that it was error for the trial court to modify the support money provision of the decree by relieving respondent of any duty to make further support money payments, when, by the terms of the divorce decree, he had previously been required to pay one hundred dollars per month towards the support of the minor child of the parties. In Feek v. Feek, 187 Wash. 573, 60 P.2d 686, 689, we said:

'* * * The fact that appellant subsequently remarried and has another child, or possibly two children, does not of itself relieve him of the obligation fixed by the original decree. In such cases, the court will make such adjustment as the necessities of the parties demand, and the ability of the husband permits. * * * [Citing cases.]'

The party petitioning for modification of the support money provision of a divorce decree has the burden of presenting evidence which shows such a change of conditions or circumstances since the entry of the divorce decree, or the last preceding order fixing support money payments, as would justify modification. White v. White, 24 Wash.2d 52, 163 P.2d 137 and cases cited. In the present action, respondent husband has present evidence of changed conditions regarding the necessities of his present household and his ability to pay. Appellant wife, while stating by way of affidavit that she and her present husband have not the means to...