Duncan v. Duncan

• Court: Washington Supreme Court
• Writing for the Court: STEINERT, Justice.
• Citation: Duncan v. Duncan, 172 P.2d 210, 25 Wn.2d 843 (Wash. 1946)
• Decision Date: 29 August 1946
• Docket Number: 29839.
• Parties: DUNCAN v. DUNCAN.

172 P.2d 210

25 Wn.2d 843

DUNCAN v. DUNCAN.

No. 29839.

Supreme Court of Washington, En Banc.

August 29, 1946

Rehearing Denied Oct. 8, 1946.

Divorce action by Hazel Bervin Duncan against James B. W. Duncan. From an order denying the defendant's petition to modify the provisions of alimony contained in an interlocutory order of divorce, the defendant appeals.

Order affirmed.

CONNELLY and MALLERY, JJ., dissenting.

Appeal from Superior Court, King County; Chester A. batchelor judge.

Burkheimer & Burkheimer and J. H. Buchanan, all of Seattle, for appellant.

Simmons & McCann, of Seattle, for respondent.

STEINERT Justice.

This is an appeal from an order of the superior court for King county denying defendant's petition to modify the provisions for alimony as contained in an interlocutory order of divorce entered seven years previously.

Appellant James B. W. Duncan, and respondent, Hazel Bervin Duncan, were united in marriage on August 3, 1920. A child, Barbara Jean was born to them in 1927.

On October 10, 1938, respondent instituted an action for divorce from appellant, on the grounds of cruelty and aban donment. Appellant defaulted in the action. Prior to the hearing of the cause, however, respondent and appellant on October 21, 1938, entered into a written agreement, denominated a 'property settlement and agreement,' in which the parties agreed that respondent was to have the care, custody, and control of the daughter, Barbara Jean, then eleven years of age, and that appellant should have the right to visit the child at reasonable times. Appellant further agreed therein to pay to the respondent 'the sum of One Hundred ($100.00) Dollars per month each and every month hereafter as alimony until and unless she should re-marry, at which time said payments are to stop,' and to pay to the respondent the additional sum of twenty-five dollars a month for the support of the daughter until she should become of the age of twenty-one years. The written agreement also provided that respondent should have, as her sole and separate property, the home in which the parties had resided, subject to an outstanding mortgage, and the furniture therein, also a Nash sedan, and an insurance policy on her life; and that appellant should have, as his sole and separate property, a half-section of land in the eastern part of this state, a designated amount of capital stock of the Bemis Brothers Bag Company, by whom appellant was then employed, and certain mining stock. In the agreement was a provision wherein the respondent wife agreed 'not to bring any separate action for damages other than this divorce action, involving the defendant [appellant] in, or could be based upon any charges arising out of this suit.'

At the hearing on November 16, 1938, the trial court made and entered findings of fact and conclusions of law establishing the grounds of divorce as alleged in respondent's complaint, also reciting the written agreement in haec verba, and specifically approving the terms thereof. On the same day, an interlocutory order of divorce was entered, which also recited and approved the terms of the written agreement.

At the time of the entry of the interlocutory order, appellant was earning a salary of $315 a month. About three years prior to the divorce, respondent had taken a course in library training, but, so far as the record discloses, had no actual employment until September, 1938, which was about a month prior to the commencement of the divorce action.

A final decree of divorce, approving all of the provisions of the interlocutory order, was entered May 17, 1939. From the time of the execution of the written agreement between the parties, appellant has regularly paid to the respondent the alimony and support money as called for both in the agreement and in the interlocutory order, and at the time involved herein he was not in default of any required payment.

In the meantime, from about March 1939 until July 1, 1945, respondent was employed as a librarian by the Kitsap County Rural Library District at a salary which averaged about $150 a month. In the spring of 1945, she 'audited' a library course in the University of Washington, and on July 1 of that year her salery as librarian was increased to $245 a month. She has never remarried.

In the month of May, 1942, appellant married his second wife and has been living with her since that time. On May 30, 1945, the daughter, Barbara Jean, then eighteen years of age, married and since then has been living with her husband.

Up to this point we have presented the situation existing between the parties at the time the present proceeding was instituted by the appellant on July 13, 1945. He was then forty-six years of age and respondent was forty-five.

On the date last mentioned, appellant filed a petition seeking a modification of the interlocutory order of divorce entered November 16, 1938. In his petition, he recited briefly the factual situation narrated above, and then alleged that respondent was a trained and skilled librarian, ablebodied, and capable of earning in excess of $200 a month; that he himself was in frail health; that it was with difficulty that he was able to pursue his occupation as office man and salesman; that he had very little income 'other than his salary of about $400 per month'; and that because of such changed conditions and status of the parties he believed that the interlocutory order and final decree should be modified by eliminating therefrom the provisions relative to the payment of alimony to the respondent and support money for the daughter. Respondent joined issue upon the petition, and the cause came on for hearing by the court upon the oral testimony of the parties.

Appellant testified that ever since September, 1938, which was prior to the commencement of the divorce action, he had been 'more or less, off and on, under a doctor's care,' due to a neurotic condition, caused by thirty-one years of hard work; that during the intervening period he had lost weight to the extent of about thirty-three pounds and presently weighed only about one hundred sixty-six pounds; that in the previous year a major operation had been performed upon his wife and that her health was still poor; and that his doctor's bills for himself and for his present wife during the year 1944 amounted to approximately eleven hundred dollars. However, he also testified that he was still employed by his original firm of employers; that his salary was $450 a month; that his bonus from the same firm during the preceding year amounted to one hundred dollars a month, although he did not expect to receive any bonus during the year 1945; and that his stock dividends amounted to $280 a year.

Respondent did not testify in her own behalf, but, upon cross-examination by appellant's counsel, she admitted that, since the date of the divorce, her salary had averaged about $150 a month, and that, beginning July 1, 1945, just Before the hearing in court, it had been increased to $245 a month.

At the conclusion of the hearing, the trial court rendered an oral decision indicating that the interlocutory order and final decree would be modified to the extent of eliminating therefrom the provision of twenty-five dollars for the support of the daughter, who since had married, but not to the extent of eliminating the provision of one hundred dollars monthly alimony to the respondent. On a motion for new trial filed by the appellant, the court heard argument and thereafter rendered a memorandum decision, followed by findings, conclusions and order in conformity with the original decision. This appeal is directed to the refusal of the trial court to modify the decree of divorce by eliminating therefrom the provisions with reference to the further payment of alimony to the respondent.

As grounds for its decision, the trial court gave two alternative reasons: (1) That, under the law applicable to the facts of the case, the decree relative to the monthly payments for the benefit of the respondent was not subject to modification and that the court therefore had no power to modify it in that respect; and (2) that, in any event, the evidence did not warrant a modification.

In reaching the conclusion at which we have arrived herein we have necessarily had to decide three questions: (1) Whether the provision for payment of one hundred dollars a month to the respondent constituted an allowance for alimony, or whether it was, in its nature, a partial property settlement; (2) whether, under the existing divorce law, such a provision, if held to constitute alimony, may be subsequently modified; and (3) whether, in any event, under the evidence, a modification in that respect should have been granted. We shall consider these questions in their numerical order.

The written agreement of the parties, which was incorporated into the original findings of fact, was termed 'Property Settlement and Agreement'; it covered matters relative to the custody of the minor child, the respective monthly amounts to be paid to the respondent for herself and for the support of the child, and the division of specifically named items of community property between the parties. If this was purely a property settlement, then, of course, it could not be subsequently modified.

Respondent argues that the particular provision was in fact part of a property settlement, not merely an allowance for alimony in a case where there was no tangible property to be divided; that the settlement was voluntarily entered into by the appellant and was explicitly confirmed by the court; that the monthly amount was part of a reward for eighteen years' faithful service as a wife; that by such contribution, together with what she could earn...