Ditmar v. Ditmar

• Decision Date: 16 February 1956
• Docket Number: No. 33394,33394
• Citation: 48 Wn.2d 373,293 P.2d 759
• Parties: Pauline DITMAR, Appellant, v. Henry DITMAR, Respondent.
• Court: Washington Supreme Court

Page 373

48 Wn.2d 373

293 P.2d 759

Pauline DITMAR, Appellant, v. Henry DITMAR, Respondent.

No. 33394.

Supreme Court of Washington, Department 2.

Feb. 16, 1956.

Rehearing Denied March 26, 1956.

James J. Keesling, Seattle, for appellant.

Edwards Merges, Seattle, for respondent.

MALLERY, Justice.

The parties were divorced in Seattle, Washington, on March 18, 1944. Plaintiff wife was given custody of their minor children, Ailene, Joan, and Robert, and an award of $80 a month for their support.

By agreement, Joan went to live with her father in July, 1948, and the payment for child support was reduced one third. After a year, she returned to her mother, and the full $80 payments were resumed. In August, 1950, Ailene married and went to Wisconsin to live. Support payments were again reduced one third. In September, 1952, Joan went to live with her father permanently. Thereafter, support money was paid only for Robert in the amount of approximately one-third of the original award.

The object of the instant proceeding was to procure a judgment against the father in the aggregate amount of the aforementioned reductions. This appeal is from the court's approval of the reductions and the modification of the award for Robert's future support to $30 a month.

The trial court predicated its order upon the agreement of the parties. Appellant contends she did not have the power to waive any of the support payments provided for in the decree. We have held that a mother has no personal interest in childsupport money and holds it only as a trustee. Wheeler v. Wheeler, 37 Wash.2d 159, 222 P.2d 400. She cannot waive the children's rights in the support money. Herzog v. Herzog, 23 Wash.2d 382, 161 P.2d 142. This deprived her agreement of any binding effect since it related to future payments rather than accrued payments.

The court's jurisdiction to enforce support-money judgments is predicated upon the continued dependency of the children in question. It follows that a mother cannot compel payments of support money for children whose dependency upon her has ceased by reason of death, emancipation by marriage, attainment of majority, service in the Armed Forces of the United States, adoption, incarceration in penal or other custodial institutions, or economic sufficiency resulting from earnings, gifts, or inheritance. In the absence of specific provisions to the contrary, there is a necessary implication in every decree for child support, that its binding effect shall extend into the future only for the period during which the children's dependency upon their custodian continues. Poland v. Poland, 63 Wash. 597, 116 P. 2; Penney v. Penney, 151 Wash. 328, 275 P. 710; Troyer v. Troyer, 177 Wash. 88, 30 P.2d 963; Anderson v. Anderson, 27 Wash.2d 122, 177 P.2d 83, 6 A.L.R.2d 831; Van Tinker v. Van Tinker, 38 Wash.2d 390, 229 P.2d 333.

While Joan lived with her father, and after Ailene's emancipation by marriage, there was no dependency for their support upon the mother. The provisions of the decree that required support payments to be made to their mother were, therefore, inoperative during such periods. Gainsburg v. Garbarsky, 157 Wash. 537, 289 P. 1000; State ex rel. Meins v. Superior Court, 159 Wash. 277, 292 P. 1011.

The appellant...