Friedlander v. Friedlander

• Court: Washington Supreme Court
• Writing for the Court: STAFFORD; HAMILTON
• Citation: Friedlander v. Friedlander, 494 P.2d 208, 80 Wn.2d 293 (Wash. 1972)
• Decision Date: 24 February 1972
• Docket Number: No. 42053
• Parties: John M. FRIEDLANDER, Respondent, v. Polly FRIEDLANDER, Appellant.

Page 293

80 Wn.2d 293

494 P.2d 208

John M. FRIEDLANDER, Respondent, v. Polly FRIEDLANDER, Appellant.

No. 42053.

Supreme Court of Washington, En Banc.

Feb. 24, 1972.

Schroeter, Jackson, Goldmark & Bender, John Goldmark, Seattle, for appellant.

Levinson, Friedman, Vhugen, Duggan & Bland, Sam L. Levinson, Seattle, for respondent.

STAFFORD, Justice.

Mr. John M. Friedlander (hereafter called the plaintiff) instituted an action for divorce against his wife, Polly (hereafter called the defendant). Defendant also sought a divorce from plaintiff. Each was granted a divorce. Defendant was awarded substantially all community property whereas plaintiff received his own separate property. Defendant appeals.

In 1955, defendant, a divorce, began an affair with the plaintiff that lasted for approximately five years. Plaintiff's then wife became acutely aware of the situation and, after a bitterly contested action in 1960, dissolved a marriage of 27 years standing. Much of plaintiff's separate property, involved in this appeal, formed the subject of a similar appeal in Friedlander v. Friedlander, 58 Wash.2d 288, 392 P.2d 352 (1961).

Immediately following the divorce from Elizabeth, plaintiff and defendant discussed marriage. However, having just experienced one unpleasant dispute over property, plaintiff suggested that he and defendant enter into a pre-nuptial agreement.

Essentially, the agreement provided that separage property owned by either party prior to the contemplated marriage would remain separate property, together with all rents, issues and profits therefrom. It specifically mentioned that plaintiff's separate property consisted 'principally of his holdings in the various Friedlander family enterprises and his contingent interest in the trust estate of Louis Friedlander, deceased.' Defendant agreed, in the event of a divorce, to 'make no claim in any proceedings for any of the separate property of John M. Friedlander, or the rents, issues and profits thereof.' Although not specified in the pre-nuptial agreement, the 'Friedlander family enterprises' in 1960 consisted of Friedlander and Sons, a corporation, which owned and operated a number of jewelry stores; LouBelle Realty Co., a corporation which owned land upon which the Logan Building was erected; P & J Wholesale Jewelers, a co-partnership; the Merton-Singerman Agency, a co-partnership; and the trust estate of Louis Friedlander, deceased.

The parties were married two days after signing the pre-nuptial agreement. At the time defendant had virtually no separate property and she acquired none during the marriage.

The parties acquired a relatively small amount of ocmmunity property. They lived on plaintiff's salary which ranged from approximately $26,000 in 1960 to about $47,000 in 1969. Plaintiff derived other income from profits of the various 'Friedlander family enterprises' and from the investment in securities which were his separate property. No children were born during the marriage.

Defendant furthered her education during the ensuing years and completed all but two quarters for her fine arts degree. Unfortunately, the same period produced marital discord. Finally, each sought a divorce from the other claiming 'cruel and inhuman treatment.'

At the beginning of the marriage, the owners' interest in the various 'Friedlander family enterprises' was valued at about $1,041,183, approximately one third of which belonged to plaintiff. When the marriage was dissolved in 1970, the owners' equity had increased to approximately $1,297,243. Plaintiff's share therein had been substantially increased by the death of his mother.

The trial court granted each party a divorce. Plaintiff was awarded the community's interest in the profit sharing trust of Friedlander and Sons, Inc., and all of his separate property which the court listed as his interest in Friedlander and Sons, Inc.; LouBelle Realty; P & J Wholesale Jewelry; Merton-Singerman Agency; an interest in the Louis Friedlander Trust; an inheritance from his mother; and his interest in various life insurance policies that had been owned prior to the marriage. In short, plaintiff's share was essentially that provided for in the pre-nuptial agreement.

Defendant was awarded most of the community property, which consisted of the family home and household furnishings; four vacant lots; the proceeds of a savings account and an automobile, all of which had a net value of about $32,000. She was also awarded alimony of $500 a month for three years, together with costs and attorneys' fees.

Defendant appeals making ten assignments of error which raise five basic issues.

I THE HUSBAND'S ENTITLEMENT TO DIVORCE FOR MENTAL CRUELTY

Defendant asserts that she alone was entitled to a decree of divorce based upon cruel and inhuman treatment. The assignment of error is not well taken.

When two parties have sued for divorce on similar grounds, an appellant will not be heard to claim that the trial court erred by granting a divorce to the other spouse as well. Akins v. Akins, 51 Wash.2d 887, 322 P.2d 872 (1958). In such a case, error, if any, if not prejudicial.

II THE ADEQUACY OF ALIMONY

Defendant asserts that prior to marriage she worked to support herself and child and lived in modest circumstances. In contrast, she contends, the marriage introduced her to a higher standard of living to which she has now become accustomed. She argues that she will be unable to maintain that standard. Thus, it is said, the trial court abused its discretion by granting her alimony of only $500 a month for three years.

While this is an engaging argument, it is not a proper basis for awarding alimony. Morgan v. Morgan, 59 Wash.2d 639, 369 P.2d 516 (1962). Alimony is not a matter of right. Kelso v. Kelso, 75 Wash.2d 24, 27, 448 P.2d 499 (1968). It is based upon Two factors: (1) the necessities of the wife And (2) the financial ability of the husband to pay. Kelso v. Kelso, Supra; Murray v. Murray, 26 Wash.2d 370, 378, 174 P.2d 296 (1946). The maintenance of a lifestyle to which one has become accustomed is not a test of Need. Morgan v. Morgan, Supra.

Further, defendant's child by a previous marriage is no longer dependent upon her for support. Defendant is only 40 years of age. She assigns no error to the trial court's findings of fact that she is in good health; that she is within two quarters of completing her fine arts degree at the University of Washington; and that she is capable of earning her own living. The record also reveals that she is engaged in the commercial operation of an art gallery which, according to her brief, is 'a business for which her education and abilities give her qualifications . . .' The indication is that the prospect for the business is good, although it may take some time to establish the gallery's name.

We cannot say that the trial court abused its discretion either in the amount or the duration of the alimony. Abuse of discretion is not shown unless the discretion has been exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable. Malfait v. Malfait,54 Wash.2d 413, 341 P.2d 154 (1959); High v. High, 41 Wash.2d 811, 252 P.2d 272 (1953); Berol v. Berol, 37 Wash.2d 380, 223 P.2d 1055 (1950). See also State ex rel. Beffa v. Superior Court, 3 Wash.2d 184, 100 P.2d 6 (1940). Defendant has failed to demonstrate the requisite Need for additional funds.

III THE PRE-NUPTIAL AGREEMENT

Both parties, as well as the trial court, have characterized the questioned instrument as a 'pre-nuptial agreement.' In citing Hamlin v. Merlino, 44 Wash.2d 851, 272 P.2d 125 (1954), each party has also referred to it as an 'ante-nuptial' agreement. However, these two designations are synonymous and the parties have so treated them. 2 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 90, at 22--23 (rev. ed. 1967).

It is significant that the transaction involves a Pre-nuptial agreements as distinguished from a Post-nuptial or separation agreement and that it has been so treated by the parties and the trial court as well. A pre-nuptial agreement is one entered into by prospective spouses Prior to marriage but in contemplation and in consideration thereof. By it, the property rights of one or both of the prospective spouses are determined or are secured to one or both of them or to their children. On the other hand, post-nuptial agreements or settlements are made after marriage Between couples still married. They take the form of (a) separation agreements; (b) property settlements in contemplation of a separation or divorce; (c) property settlements where there is no intention of the parties to separate. 2 A. Lindey, § 90, at 22--23; 1 W. Nelson, Divorce and Annulment § 13.02, at 485 (2d ed. 1945).

It is also important that although defendant challenges the validity of the prenuptial agreement, based upon the conditions that surrounded its making, neither party contends that pre-nuptial contracts, as such, are contrary to public policy, if freely and intelligently made. Hamlin v. Merlino, supra; 2 A. Lindey § 90, at 30; See also 1 W. Nelson § 13.03; 41 Am.Jur.2d Husband and Wife § 283 (1968). Finally, neither party raises the question whether the pre-nuptial agreement was made in contemplation of or is promotive of divorce, and if so, whether it is void as against public policy for that reason. ¹ Thus, there is no need to resolve either of the immediately preceding questions in this case. We are here concerned with whether the prenuptial agreement, assuming its proper use in this type of transaction, is valid as between these parties under the rules governing pre-nuptial agreements.

First, defendant argues that there was no consideration for the agreement because plaintiff had previously proposed marriage. This position, however, finds no support in the authorities. Marriage is not only adequate, but is consideration of the highest value. 2 A. Lindey, § 90, at 32--33; 41 Am.Jur.2d...