Harding v. Harding

• Court: Washington Supreme Court
• Writing for the Court: [11 Wn.2d 139] JEFFERS, Justice.
• Citation: Harding v. Harding, 118 P.2d 789, 11 Wn.2d 138 (Wash. 1941)
• Decision Date: 03 November 1941
• Docket Number: 28456.
• Parties: HARDING v. HARDING.

118 P.2d 789

11 Wn.2d 138

HARDING v. HARDING.

No. 28456.

Supreme Court of Washington

November 3, 1941

Department 2.

Suit by Elsie Stackhouse Harding against Ira S. Harding for divorce and other relief, wherein the Seattle-First National Bank (Broadway Branch) and another were made parties to the suit and defendant filed a cross-complaint. From an unsatisfactory judgment, plaintiff appeals.

Reversed and remanded, with instructions.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Wright & Wright, of Seattle, for appellant.

Ballinger Clark & Force, of Seattle, for respondent.

JEFFERS, Justice.

Elsie Harding instituted this action for divorce against Ira S Harding, in the superior court for King county. Seattle-First National Bank (Broadway Branch) and Harbor Plywood Company, a corporation, were also made parties to the action, and an accounting of all money in their possession owing to the community was asked as against these last named defendants.

The grounds for divorce, as alleged in the complaint are 'That on the night of October 10, 1940, the defendant Ira S. Harding viciously assaulted the plaintiff, kicking her and beating her until she is permanently injured, by reason of which it is no longer possible for the parties to live together as husband and wife.'

Defendant Ira S. Harding by his answer admitted that the parties were married June 22, 1940; that there were no children born as the issue of such marriage; that each of the parties have certain separate property; that this defendant had some money in Seattle-First National Bank, and some money due from Harbor Plywood Company; that an altercation with plaintiff took place on the night of October 10, 1940; that both plaintiff and defendant were injured thereby; and that the parties can no longer live together. Defendant denied the other allegations of the complaint.

In his cross-complaint, defendant Harding alleged that the parties were married at Olympia, June 22, 1940; 'that said marriage has never been consummated;' that defendant has considerable separate property consisting of household furniture, furnishings and effects, together with a 1935 two door Ford sedan and numerous tools and equipment; that defendant has advanced to plaintiff and made improvements upon certain real property held in the name of plaintiff, and acquired by her prior to this marriage.

It is further alleged that on the night of October 10, 1940, plaintiff viciously assaulted defendant, severely injuring him and causing him by reason thereof to leave the premises; that plaintiff resisted consummation of the marriage, and the parties have never assumed a marital relationship. Defendant then asked for a divorce on the grounds of cruelty.

Plaintiff by her reply denied the affirmative matter set up in the cross-complaint.

The matter came on for hearing Before the court, and at the conclusion of the case the court stated:

'Well, in so far as the facts surrounding this fight that they had that night, it has been testified to by both parties. I would accept Mr. Harding's statement as to what occurred there as establishing the true facts; but, even if I do that, it does not excuse him for the terrible mauling that he gave her, because, of course, that is inexcusable. I would like to accept further the fact that he did advance various sums that he said that he did advance in improving the property of Mrs. Harding. I don't think that it was done against her wishes. She might not have wanted it particularly, but I think that she was willing to have it done. * * *

'There is nothing that I can do further than grant to the plaintiff a divorce on the ground of cruelty. I will make no allowances in the matter at all for her support or otherwise, because I feel the improvements on the place made by the community and by Mr. Harding offset any claim that she might have. Mr. Harding will pay the costs of the entry of the decree. That will be the decision of the court.'

On March 19, 1941, the trial court filed a memorandum opinion as follows:

'After consideration I have come to the conclusion that I was mistaken in granting a divorce to the plaintiff for the reason that the evidence established that the marriage had never been consummated, due to the refusal of the plaintiff to enter into marital relations with the defendant and her refusal to cohabit with him.

'(1) Any improvement made upon plaintiff's real property by the defendants shall belong to the plaintiff wife without compensation therefor to the defendant husband.

'(2) That all of the personal property belonging to the defendant prior to the marriage ceremony and after said marriage taken to the residence of the plaintiff, and which said property was directed to be returned to him by order of the court, shall be the property of said defendant, free from any claim thereon on the part of the plaintiff, and he may recover the same wherever he may find it.

'(3) That the money remaining in the defendant bank shall be the property of the defendant husband.

'(4) That defendant is entitled to a decree of annulment on his cross-complaint, and that he recover his costs.

'Findings of fact, conclusions of law and decree in accordance herewith may be presented for signature.'

On March 27, 1941, the court made and filed its findings of fact and conclusions of law, and on April, 19, 1941, its decree of annulment on defendant's cross-complaint. Motion for new trial was timely filed by plaintiff and denied, and on May 7, 1941, plaintiff gave notice of appeal from the decree entered.

Error is based on the court's refusal to grant a divorce to appellant; on making and entering findings of fact Nos. 3, 4 and 5; on refusing to award to appellant her portion of the accumulation of the community during marriage; on entering judgment against appellant for costs; on refusing to award appellant counsel fees and costs; and on entering a decree of annulment in favor of respondent.

Before discussing the questions presented in this case, we shall set out some of the facts relative to this unfortunate matrimonial venture.

At the time these parties were married, appellant was fifty-two years of age, weighing about one hundred thirty pounds; respondent was sixty-six years of age, weighed two hundred seventy pounds, and was six feet three inches tall. At the time of the marriage, appellant owned a five acre tract at Riverton Heights, on which there was a new house, and also an old house and an orchard. Respondent owned no real property, and was in the business of building water tanks. Appellant's version of this marriage was as follows: 'Well, that was why we were married. It was a business proposition from the beginning. We agreed to more or less go in business together. I had been in this water district for a good many years, had good connections, and we figured that we could make a go together. I was to become a member of Harding & Company. In fact, he had stationery printed to that effect. I was to take care of the office and he was to do the ground work. That is what happened. I did all that. I done errands, ran back and forth between Seattle and Aberdeen, doing whatever was necessary to be done with the job.'

On cross examination, Mrs. Harding was asked the following question: 'Was this marriage ever consummated? Did you ever have marital relationship with Mr. Harding?' to which she replied, 'No, sir.'

Appellant's claim of cruelty is based upon the assault made upon her by Mr. Harding on the night of October 10, 1940. Some idea of the unmerciful beating inflicted on appellant by respondent on this occasion may be obtained from the testimony of Doctor John Thorp, who examined appellant. This witness testified: 'She had,--both eyes were blackened. There was a subconjunctival hemorrhage of both eyes. The nose was discolored and swollen. I thought fractured. Bruises over both ears and over the forehead. Bruises over the left side of the neck below the mastoid process. An area of swelling about the size of an egg behind the left ear. A large bruise on the upper right arm. Another bruise covering the whole of the extensive surface of the right forearm and hand. Two bruises on the upper left arm. Other large bruises covering the lateral one-third of the left side of the back. A bruise over the sternum about three inches by two inches. Many other small bruises scattered through different parts of the body.'

It is not denied but that appellant was confined to her bed for some time after this occurrence, and she claims, amoung other things, that her eyes have been permanently affected. The testimony is undisputed that appellant finally got away from respondent and ran downstairs and out into the yard, where she stayed until respondent left the house; that respondent attempted to follow her but turned his ankle or hurt his leg on the stairs and was apparently unable to go on.

Respondent himself testified on direct examination:

'Q. Did you see the condition she was in from the fight? A. I did.

'Q. How badly was she bruised? A. The worst of anybody I ever saw.'

Respondent attempts to justify his assault by stating that appellant assaulted him, and that because of the pain caused by her assault, he lost his head. The testimony shows that there were some scratches inflicted by appellant on or in the vicinity of respondent's privates, during the altercation of October 10th. Carl Johnson, a witness for respondent, to whom respondent showed these scratches, testified that they did not look too bad; that the skin was scratched off.

It seems to us the first question which must be answered is whether or not, under the law and the facts of this case, the trial court was justified in granting a decree of...