Esteb v. Esteb

• Decision Date: 25 March 1926
• Docket Number: 19490.
• Citation: 138 Wash. 174,244 P. 264
• Parties: ESTEB v. ESTEB.
• Court: Washington Supreme Court

244 P. 264

138 Wash. 174

ESTEB v. ESTEB.

No. 19490.

Supreme Court of Washington, En Banc.

March 25, 1926

Appeal from Superior Court, Pierce County; Card, Judge.

Action by May B. Esteb against H. L. Esteb to modify decree of divorce. From an order modifying decree, defendant appeals. Affirmed.

Parker J., dissenting in part.

Burkey & Burkey, of Tacoma, for appellant.

Hayden Langhorne & Metzger, of Taxoma, for respondent.

ASKREN J.

This is an action to modify a decree of divorce to provide for the support of a minor child. From an order modifying the decree the husband has appealed. Since the hearing in this court the husband died and the executrix of his estate has been substituted as appellant.

The facts follow: In 1915, respondent secured a divorce from decedent. She was granted the custody of their two minor children, Esther and Carmelita, and provision was made for their support. Thereafter, under appropriate proceedings, the divorced wife was granted a certain amount of community property in settlement of the marriage relation. The older daughter, Esther, has since become of age. The younger, Carmelita, became 18 years of age in July, 1925. The decree orginally provided for a certain sum per month for her support until she reached the age of 18 years, which was the legal age of majority at that time. In 1923, the Legislature by chapter 72, Laws of 1923, placed the age of majority for females at 21 years. In January, 1925, the respondent brought this action to modify the decree and to require the decedent to contribute to the support of Carmelita the sum of $60 per month.

The record shows that the daughter Esther is employed as a stenographer earning approximately $110 per month; that she boards with her mother and pays $40 per month therefor. The mother has no financial means, and her health is such that she is unable to perform any labor other than ordinary household duties. The daughter Carmelita, in February, 1925, began to attend the College of Puget Sound, located in Tacoma, where she is majoring in English, with the intention of becoming a teacher thereof, and the record shows that she is especially adapted for this sort of work. She attempted to take a typewriting course, but was advised by her teacher that she was too nervous to follow that line. In her desire to secure an education quickly, she went to summer school 2 years, and was enabled to finish the regular 4-year course in 2 1/2 years.

The record shows, also, her special aptitude for the class of work she is taking, it appearing that owing to her excellent grades in Latin she was permitted by the Foreign Language Department of the Lincoln high school to take Greek as a freshman; this being, according to the testimony of one witness, the only instance of its kind in the history of the school. While attending the College of Puget Sound she resides at the home of respondent.

December, after his divorce, remarried twice; the first marriage lasting approximately 90 days, and the second taking place in February, 1923. He had living with him at the time of the trial his wife, and two of her sons by a former marriage, one being 11 and the other about 18, both of whom are attending school, the older being in high school. Decedent was employed as a pilot conductor by the Chicago, Milwaukee & St. Paul Railway Company, in whose employ he had been almost continuously since 1900. Aside from severe nervous trouble which required him to be under restraint for a short period in 1912, and again in 1920, he had been continuously employed. Owing to his nervous condition, and to eye trouble, the position which he then occupied, which was described by own witness as a sort of 'third conductor on the train' was the only available work that he was capable of performing. During the past 3 years his wages averaged something over $3,000 per year. He lived in his own home on a piece of rented ground near Cedar Falls, and in a portion of the Seattle watershed district. He was, at the time of the hearing, 52 years of age. He had on hand securities the amount of which he placed at between $9,000 and $11,000, and which draw interest at from 4 per cent. to 7 per cent., averaging, according to his testimony, approximately 5 1/2 pre cent.

The trial court, after hearing the evidence, concluded that Carmelita needed and required the education which she is receiving at the college, modified the previous decree, and placed the amount for her support at $60 per month until she became of age, 21 years. The court did not expressly provide that the money should be used to send her to college, but placed it upon the ground that it was necessary for her support. It is quite evident, however, from reading the court's oral decision, that it was intended and expected that this support money should be used for that purpose.

Many questions are raised by appellant, but we think they may be combined under two assignments of error:

(1) Was this provision of $60 per month, though nominally for the support of the minor daughter, in reality an additional award to the mother?

At the trial of the cause there crept into the record some testimony regarding the previous troubles of decedent and respondent, especially with reference to the community funds which decedent had on hand at the time of the divorce, and which he had secreted. It is unnecessary here to detail the lawsuits which followed, including applications to the court for a division of the secreted funds after their whereabouts were ascertained. It is sufficient to say that the record discloses a situation which put decedent in an embarrassing position as to his action in regard to the amount due his divorced wife, although it may be admitted that legally the matter had been disposed of and that respondent was in no position in this action to urge decedent's previous delinquency. Appellant argues from this that, since Carmelita is living at home with her mother, the payment of this $60 per month for her support was really intended to punish decedent for his previous misconduct, by allowing respondent to receive the $60 for the purpose of maintaining her home. But while the court may have adverted in its oral opinion to the past conduct of decedent, and to the present financial and physical condition of respondent, we think a fair inference from its decision is that those things were taken into consideration solely for the purpose of determining the condition of respondent, and whether she was able, therefore, to assist her daughter in securing her education, and as to what amount would be required therefor.

(2) The main and serious question in this case is this: Has the court the legal right to compel a divorced father to provide funds for a college education for his minor child whose custody has been given to the mother?

We have never been called upon to decide this precise question before. If the court has this legal right it must be upon the ground that the same is necessary, for the duty of a father to provide for his minor child when the custody be in another is restricted to necessaries.

From earliest times the question of what is a necessary has frequently perplexed the courts. Under practically all the authorities, these things are necessary which include shelter, food, clothing, and medical attendance, together with an education. As to what kind of food, clothing, shelter, etc., is necessary, has usually been left to a jury to decide, taking into consideration the minor's position in life, station in society, and the fortune of the child or its parents.

As to the amount of education that should be considered necessary, courts have never laid down a hard and fast rule. The rule is stated in 14 R. C. L. p. 258, as follows:

'Some kind of education has been included from early times within the class of necessaries for which an infant may contract. The early cases, however, seem to have confined this to elementary or vocational education, and even in the latter cases a callege, university or professional education has generally been excluded, though it has been judicially suggested that it might be allowed in a case where the infant's ability and prospects justify it.'

Probably the earliest reported case in this country involving the question as to whether a college education is a necessity is Middlebury College v. Chandler, 16 Vt. 683, 42 Am. Dec. 537, where a suit was brought to recover from the father tuition and other bills which represented a charge for his minor son as a student at the college. This case appears to be authority and is referred to by nearly all text-writers upon the question. The court there refused to hold that a college education was a necessary, but the court's reasoning for its holding is very interesting:

'The practical meaning of the term [necessaries] has always been in some measure relative, having reference as well to what may be called the conventional necessities of others in the same walks of life with the infant as to his own pecuniary condition and other circumstances. Hence a good, common school education, at the least, is now fully recognized as one of the necessaries for an infant. Without it he would lack an acquisition which would be common among his associates; he would suffer in his subsequent influence and usefulness in society, and would ever be liable to suffer in his transactions of business. Such an education is moreover, essential to the intelligent

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