Gorvin v. Stegmann, 39393

• Decision Date: 18 July 1968
• Docket Number: No. 39393,39393
• Citation: 443 P.2d 821,74 Wn.2d 177
• Court: Washington Supreme Court
• Parties: Gloria GORVIN, formerly Mrs. Gloria Stegmann, Appellant, v. Donald F. STEGMANN, Respondent and Cross-Appellant.

Page 177

74 Wn.2d 177

443 P.2d 821

Gloria GORVIN, formerly Mrs. Gloria Stegmann, Appellant, v. Donald F. STEGMANN, Respondent and Cross-Appellant.

No. 39393.

Supreme Court of Washington, Department 1.

July 18, 1968.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Seattle, for appellant.

Gordon, Honeywell, Malanca, Peterson & Johnson, William Goodwin, Jr., Tacoma, for respondent and cross-appellant.

HALE, Judge.

Gloria Gorvin, the plaintiff, and Donald F. Stegmann, the defendant, were married in New York in 1947 and divorced in Georgia in 1953. The Georgia divorce decree called for support or alimony payments of $200 per months which the plaintiff now seeks to enforce under the Uniform Enforcement of Foreign Judgments Act, RCW 6.36. Urging a modification of the Georgia decree and at the same time denying that it ordered what was known in Georgia as permanent alimony, the defendant asks that he be relieved of all further liability for alimony or support of his former wife.

Gloria Gorvin was a professional actress in Berlin, Germany, during the war years of 1942 and 1943, and in Frankfurt after the war in 1946 and 1947. In 1947, she married Donald F. Stegmann, an officer of the United States Army and they established their home in Columbus, Georgia, in July of that year. They had no children. In 1953, while Stegmann was stationed in Japan, she started a divorce action against him. The Superior Court for Muscogee County, Georgia, entered a final judgment and decree of divorce April 9, 1953, fixing

alimony and support for the wife as follows: The agreement hereto attached and made a part hereof is hereby made a part of this decree, and the defendant, Donald F. Stegmann, is hereby ordered to pay to the Plaintiff, as provided by said agreement, the sum of Two Hundred Dollars ($200.00) per month, * * * and continuing until the death or remarriage of plaintiff.

Both parties were represented by counsel throughout the divorce proceedings. The divorce agreement, incorporated into the decree, acknowledged that the wife--then 29 years of age--was receiving the sum of $200 per month, $143.14 of which came from her husband's army allotment for quarters and subsistence as a Major, and a $56.86 monthly mortgage allotment on the house then occupied by the wife. The agreement then went on to state:

The said Husband agrees to pay said Wife for her support and maintenance the sum of $200.00 per month in cash until the remarriage or death of the Wife, whichever occurs first, and said sum shall be paid by the Husband on the 10th day of each month to the Probation Officer of Muscogee County, Georgia, first payment being due and payable on the 10th day of April, 1953. The said Wife covenants that in the event of remarriage she will immediately notify the Probation Officer of Muscogee County, Georgia, by registered mail, of such remarriage.

3. The Wife accepts the provisions herein made for her in lieu of and in full settlement and satisfaction of any and all claims and rights against the Husband, or against his estate, his heirs, executors, administrators and personal representatives, for her support and maintenance, or for alimony, temporary or permanent; and in full settlement and satisfaction of any and all other claims and rights whatsoever * * * which she, the Wife, ever had, now has, or might hereafter have against the Husband * * *.

The agreement divided the property of the parties, item by item, and declared that there should be no modification or waiver of any of its terms unless agreed upon in writing by the parties.

Apparently the defendant paid $200 per month regularly until 1962. During a time when the plaintiff was temporarily living in Germany, the defendant, while residing in Pierce County, Washington, brought a petition in the Superior Court and obtained a default decree of modification relieving him completely of the duty to pay the $200 per month. This decree of modification, entered September 13, 1962, proved to be a nullity and was vacated in the present action for want of valid service.

Mrs. Gloria Gorvin, having for good cause changed her name from Stegmann, filed the instant petition in March, 1965, under RCW 6.36, the Uniform Enforcement of Foreign Judgments Act, Laws of 1953, ch. 191, p. 409, asking registration and enforcement of the April 9, 1953, divorce decree of the Superior Court for Muscogee County, Georgia. She alleged that the defendant, Donald F. Stegmann, had paid no support or alimony after August, 1962. Defendant answered that he is a resident of Washington and asked that the Georgia decree be deemed modified as of September 13, 1962, the date of the void decree of modification, and that, in the alternative, on the basis of changed conditions, the 1953 Georgia decree be so modified as to relieve him of all future liability to the plaintiff for support and alimony.

As earlier noted, the trial court for want of valid service vacated the September 13, 1962 decree of modification, but found that the defendant had faithfully maintained his $200 per month payments to the plaintiff through August 1962. On the premise that a substantial change in condition of the parties had taken place since its entry in 1953, the trial court modified the Georgia decree.

According to the court's finding, the defendant's combined income from teaching school and Army retirement came to about $10,000 per year; his present wife earned about $5,600 as a school teacher, and thus his income had not diminished since entry of the Georgia decree. The court found, however, that plaintiff 'is now in good health and is capable of and able to secure employment and of earning substantial income.' The learned trial court thereupon in the instant cause entered a decree holding the defendant Stegmann in default of the Georgia decree at the rate of $200 per month for 44 months--from September, 1962, through April, 1966, and awarding plaintiff judgment for $8,800 with accrued interest at 6 per cent annually. The court then modified the Georgia decree, ordering defendant to pay $100 per month for 1 year, ending with the month of April, 1967, and decreed that thereafter the alimony or support payments should terminate and the defendant's financial responsibility toward plaintiff be at an end.

In reaching a decision to modify the Georgia decree, the trial court concluded that the decree did not provide what is known in Georgia law as permanent alimony, and therefore, that the decree, when established as a foreign judgment under the laws of Washington, was subject to modification in this state.

Under the statutes and decisions of the Supreme Court of Georgia in effect prior [443 P.2d 824] to 1955, if a judgment for permanent alimony based upon the agreement of the parties, contained no reservation of jurisdiction for the purposes of later modification, the trial courts of Georgia had no jurisdiction or authority to thereafter modify it. Chandler v. Chandler, 204 Ga. 40, 48 S.E.2d 841 (1948); Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680 (1941), see also Estes v. Estes, 192 Ga. 94, 14 S.E.2d 681; and Nipper v. Nipper, 133 Ga. 216, 65 S.E. 405 (1909).

As the Supreme Court of Georgia stated in Banda v. Banda, 192 Ga. 5, 14 S.E.2d 479 (1941):

While 'the order allowing (temporary) alimony shall be subject to revision by the (trial) court at any time' (Code, § 30--204; Coffee v. Coffee, 101 Ga. 787, 28 S.E. 977; Wester v. Martin, 115 Ga. 776, 42 S.E. 81), the rule is different as to decrees for permenent alimony. After a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself.

Therefore, if, as plaintiff contends,...