Fisch v. Marler

• Decision Date: 13 December 1939
• Docket Number: 27649.
• Parties: FISCH v. MARLER. FISCH v. FISCH (FISCH, Intervener).
• Court: Washington Supreme Court

97 P.2d 147

1 Wn.2d 698

FISCH v. MARLER.

FISCH v. FISCH (FISCH, Intervener).

No. 27649.

Supreme Court of Washington

December 13, 1939

Department 2.

Action by Lou F. Fisch against Nannie B. Marler to set aside divorce decree previously obtained by the defendant or in the alternative to procure injunctive or other equitable relief against enforcement of the decree, and action by Nannie B Marler instituted by procuring writs of garnishment supplemental to the divorce decree, directed to the employer of Lou F. Fisch, wherein Anna Fisch intervened, and contempt proceeding by Nannie B. Marler against Lou F. Fisch. The actions were in part consolidated for trial below and were heard and disposed of by the same trial judge. From judgment dismissing complaint of Lou F. Fisch and from order in the contempt proceeding adjudging Lou F. Fisch in contempt and prescribing terms of purgation, Lou F. Fisch appeals. From an adverse judgment and decree in the action instituted by writs of garnishment, Nannie B. Marler appeals. The appeals were consolidated.

Judgment dismissing complaint of Lou F. Fisch and order adjudging him in contempt affirmed. Judgment dismissing writs of garnishment reversed and that cause remanded with directions to proceed in accordance with opinion.

Appeal from Superior Court, Pierce County; F. J Remann, judge.

Wright & Wright, of Seattle, for appellants.

Charles H. Heighton and George F. Hannan, both of Seattle, for respondent.

Vanderveer & Bassett, Arthur T. Wendells, John Kelleher, Attwood A Kirby, and Ambrose C. Grady, all of Seattle, amici curiae.

STEINERT Justice.

This is a consolidated appeal involving three actions. The first was brought by Lou F. Fisch against Nannie B. Marler, formerly Nannie B. Fisch, to set aside a decree of divorce which she had obtained against him in a prior action, or, in the alternative, to procure injunctive or other equitable relief against the enforcement of the decree. Nannie B. Marler instituted the second action, or series of actions, by procuring successive writs of garnishment, supplemental to the decree, directed to the employer of Lou F. Fisch; in those proceedings, an order of intervention was entered upon the complaint of Anna Fisch, the present wife of Lou F. Fisch. The third action was a contempt proceeding instituted by Nannie B. Marler against Lou F. Fisch, under the title of the original divorce action, and was brought contemporaneously with the second garnishment proceeding. These actions were in part consolidated for trial below and all of them were duly heard and disposed of by the same trial judge. The complaint of Lou F. Fisch in the first action was dismissed and from the judgment therein he has appealed. The writs of garnishment in the second series of actions were also dismissed, with an allowance of $25 attorney's fee to the garnishee employer, and the garnisher, Nannie B. Marler, was forever enjoined from attempting to take any of the community property of Lou F. Fisch and his present wife, Anna Fisch, and particularly from procuring any further writs of garnishment directed to the employer of Lou F. Fisch. From a judgment and decree embodying those rulings Nannie B. Marler has appealed. In the contempt proceeding, findings of fact were made and an order was entered adjudging Lou F. Fisch in contempt and prescribing the terms of purgation. From that order Lou F. Fisch has appealed.

In order to have an accurate understanding of the questions here involved, it will be necessary to employ some detail of dates and circumstances making up the skein of the present controversy. For convenience, we shall refer to Lou F. Fisch as appellant, to Nannie B. Marler as respondent, and to Anna Fisch as intervener.

Appellant became acquainted with respondent at Kellogg, Idaho, on March 17, 1915, both parties being at the time residents of that state. Appellant was then a single man; respondent was the wife of one Bernie Blair by whom she had one child, a daughter three years of age. Blair disappeared from Kellogg in May, 1915, and has not been heard from since. Respondent was divorced from Blair October 23, 1915, and was awarded the custody of the child. According to the stipulation of the parties herein, the law of Idaho at that time rendered a subsequent marriage illegal and void unless the former marriage of either party had been annulled or dissolved more than six months. Laws of Idaho, 1903, p. 10, § 1.

There is a dispute in the evidence as to when appellant first learned the date of respondent's divorce from Blair. Appellant testified that when he met respondent in March, 1915, she told him that she was then divorced, and that he did not definitely learn otherwise until the commencement of his present action. Respondent, on the contrary, testified that appellant was well aware of her marital status at the time and that, in fact, he had aided her financially in procuring her divorce. Upon that issue the trial court found for respondent. A review of the evidence upon the question convinces us that appellant was, at the time, well aware of respondent's marital situation. We therefore agree with the finding made by the trial court and proceed with our consideration of the case on that basis.

On March 4, 1916, which was within the six months' prohibitive period, appellant and respondent went to the state of Montana for the express and sole purpose of marrying each other. After the ceremony had been performed they returned to Idaho where they resided for the next three years. It is without question that both parties believed that they were legally married.

Subsequently, they moved to Washington where they lived together continuously as husband and wife until October, 1931, during all of which time appellant supported respondent and her daughter. No child was born of their union.

On October 15, 1931, respondent instituted in Pierce County, Washington, an action for divorce from appellant on the ground of cruelty. Appellant defaulted in the action. On November 19, 1931, after a hearing, the court made findings conforming to the allegations of the complaint, to the effect that the parties had intermarried in the state of Montana, that appellant was guilty of cruelty toward respondent, that the parties had no community property except their household furniture, and that appellant was earning a salary of $250 per month and commissions. The court on the same day entered an interlocutory decree of divorce in which respondent was awarded the household furniture, permanent alimony in the sum of $75 per month, and an attorney's fee of $100. The interlocutory decree contained no provision reserving to the court the power to modify it. Final decree of divorce was entered, at the instance of respondent, on March 17, 1936.

Appellant paid the accruing alimony according to the terms of the decree continuously until August, 1938, at which time the total payments made by him amounted to $6,150. He then discontinued payments for reasons which will presently appear.

On March 20, 1936, following the final decree of divorce above mentioned, appellant married his second wife, the intervener herein, who at that time was a divorced woman and the mother of two children, the older of which was about eleven years of age. A child, now about two years old, was subsequently born of her marriage to appellant. Intervener and her three children are being supported by appellant, who also contributes from thirty to forty dollars per month toward the support of his aged parents.

On March 19, 1938, respondent married Dallas Marler, a private in the United States Army, earning a compensation of $37.50 per month. No child has been born of that union. Appellant did not learn of respondent's marriage to her third husband until September, 1938, at which time, on advice of counsel, he discontinued the monthly payments to her. Respondent testified that she could not have married her present husband had it not been for the fact that she was receiving $75 per month alimony from appellant; that she had no other source of income; that for a long time she had been under a doctor's care; and that she and her present husband were buying a home upon which they were paying $20 a month.

The evidence discloses that appellant now earns $300 per month plus a yearly bonus, which in 1938 amounted to $1,600. There is a mortgage on his present home, occupied by himself and intervener, amounting to about $3,900. Without going into further details upon the subject of appellant's financial obligations, it is sufficient to say that his evidence was to the effect that, after paying the necessary expenses of his present household and the monthly contributions to his parents, his income was insufficient to pay the alimony installments.

With this factual situation Before us we approach the several questions presented for decision.

Appellant's contentions, in so far as his complaint for relief from the decree is concerned, relate to the past and present marital status of the principal parties. His first contention is that the marriage in Montana was wholly void and that therefore there could be no legal divorce, nor any valid award of alimony to respondent. Appellant rests his argument upon the fact that his marriage to respondent was within the six months' prohibitive provision of the law of Idaho where respondent was divorced and where the parties hereto were then domiciled.

While the general rule is that the validity of a marriage is determined by the law of the place where the marriage is contracted, there are certain well recognized exceptions. One of these arises when a statute either expressly or by judicial interpretation forbids remarriage by domiciliaries either within or without ...