Flagg v. Flagg

• Decision Date: 23 December 1937
• Docket Number: 26743.
• Citation: 192 Wash. 679,74 P.2d 189
• Parties: FLAGG v. FLAGG.
• Court: Washington Supreme Court

74 P.2d 189

192 Wash. 679

FLAGG v. FLAGG.

No. 26743.

Supreme Court of Washington

December 23, 1937

Department 1.

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

Divorce action by Aline Weaver Flagg against Donald H. Flagg, wherein defendant filed a cross-complaint. From an interlocutory decree, both parties appeal.

Modified in part, and affirmed in part.

Frank C. Owings, of Olympia, for appellant.

Hayden Metzger & Blair, of Tacoma, for respondent.

STEINERT, Chief Justice.

Aline Weaver Flagg and Donald H. Flagg are husband and wife. At the time of their marriage, July 10, 1926, Mrs. Flagg was twenty-two years of age and Mr. Flagg was thirty. They have one child, an infant daughter born in June, 1933. Their community property is valued at about $5,000. Mr. Flagg has separate property of the value of about $10,000. In this action each of the parties is seeking a divorce from the other, the custody of the minor child, and the adjudication of their property rights. From an interlocutory decree adjudicating all questions presented by the issues in the case, each has appealed.

For convenience, we shall refer to Mrs. Flagg as though she were merely respondent herein and to Mr. Flagg as though he were the sole appellant.

An analysis of the pleadings and a recitation of the procedural steps taken in the case will serve as an adequate statement of the facts so far as our immediate needs are concerned.

On September 22, 1936, respondent instituted this action for divorce from appellant on the grounds of cruelty and nonsupport. In her complaint she alleged, among other things her fitness to have the custody of the minor child, and prayed that it be awarded to her. She also asked for an adjudication of the property rights of the parties.

On October 13, 1936, appellant answered the complaint by general denial, with no affirmative allegations except one to the effect that he was a fit and proper person to have the care custody, and control of the child. The prayer of the answer asked that respondent's complaint be dismissed or, if a divorce should be granted, that the custody of the child be awarded to him.

With the issues so framed, the cause was set down on October 24, 1936, for trial on December 4 following.

On November 17, 1936, respondent filed an amended complaint which assigned, as grounds of divorce, nonsupport and cruel treatment in several specific respects and, in reliance thereon, renewed her prayer for relief.

On December 4, when the case was called for trial, appellant moved for a continuance on the ground of the absence of a material witness upon whom subpoena had previously been served. Respondent's counsel objected to the continuance and also demanded a statement of what the witness would testify if personally present. Appellant's counsel then made a statement concerning the expected testimony, the substance of which purported to disprove that respondent was a fit and proper person to have the care, custody, and control of the minor child.

The court thereupon announced that it would not permit the introduction of such evidence upon appellant's general denial, but only upon an affirmative charge in a formal pleading setting forth a ground of divorce. Appellant then asked leave to amend his answer and thus conform to the court's ruling. The court at first indicated that such leave would be granted, but, upon objection by respondent, denied both the motion for continuance and the motion for leave to amend.

The trial then proceeded upon the issues already framed and as limited by the court's ruling. Respondent having concluded her evidence, except for the examination of appellant as to the property and property rights, appellant consumed the rest of the day in introducing his evidence, but did not finish his case by the time of adjournment. Owing to the state of its calendar, the court adjourned the hearing until December 9.

On December 8 appellant served upon respondent's counsel an amended answer and cross-complaint setting up, in an affirmative way and as a ground for divorce from respondent, the matter which he had theretofore intended to offer under his general denial.

When the trial was resumed on December 9, appellant presented a motion, supported by affidavit, asking leave to file his amended pleading. The motion was granted and appellant thereupon filed his amended answer and cross-complaint, wherein, upon his affirmative allegations, he asked for a divorce from respondent, the custody of the minor child, and the award to himself of all the property, both community and separate. Respondent then moved for, and was granted, a continuance of the trial to December 28 in order to meet the new issue thus presented. In due time, respondent filed her reply, putting in issue the affirmative allegations of the cross-complaint.

The trial was resumed on December 28 and proceeded to its conclusion on all the issues then made by the pleadings.

The court, after taking the cause under advisement, rendered a written memorandum decision on January 9, 1937, stating therein that respondent's evidence was insufficient to establish any of the grounds of divorce as alleged in her complaint and announcing that a divorce would be granted to appellant on the charge contained in his cross-complaint; further, that the minor child would be awarded to the appellant father, with the right in the respondent mother to have the child two days each month and for one month during the summer. In the memorandum decision the court further directed appellant to pay to respondent the sum of $2,000 cash, also an attorneys' fee of $300 and certain outstanding bills. All of the property, excepting the wife's personal effects and a few special articles, was awarded to appellant.

Thereafter, on motion of respondent, the cause was reargued and the court again took the matter under advisement. On February 16, 1937, the court rendered a second, or supplemental, written decision in which it was again stated that respondent's evidence failed to substantiate any of her alleged grounds of divorce. The court stated, however, that after further reflection it had concluded that appellant's ground of divorce as alleged in the cross-complaint had not been established by that degree of proof which the law required. Nevertheless, the court at the same time held that appellant had made out a case for divorce from respondent on the ground of cruelty, although it had not been specifically pleaded. Under the modified decision, the custody of the minor child was awarded to the respondent mother, with the right to the appellant father to have the child two days each month and one month during the summer. This, it will be noted, was the converse of the award of the custody of the child in the prior decision. The former money award to respondent was increased from $2,000 to $2,500, and an award giving certain enumerated articles to respondent was also made.

Pursuant to the supplemental decision, findings, conclusions, and an interlocutory decree were entered. As already indicated, both parties are dissatisfied with the decree and have appealed.

As may be inferred, the appeal covers three subjects: (1) The right to a divorce; (2) the custody of the minor child; and (3) the division of property.

The statement of facts comprises 427 pages....