Hayton v. Hayton

• Citation: 122 Wash. 594,211 P. 745
• Decision Date: 21 December 1922
• Docket Number: 17332.
• Court: Washington Supreme Court
• Parties: HAYTON v. HAYTON.

211 P. 745

122 Wash. 594

HAYTON v. HAYTON.

No. 17332.

Supreme Court of Washington

December 21, 1922

Department 1.

Appeal from Superior Court, Spokane County; Jos. B. Lindsley, Judge.

Petition by Charles G. Hayton to change the custody of his child from his divorced wife, Mary F. Hayton, to himself. From an order requiring him to pay her certain sums for costs and temporary attorney's fees, he appeals. Order reversed.

Sharpstein Smith & Sharpstein, of Walla Walla, for appellant.

Henry G. W. Knebel, of Spokane, for respondent.

MACKINTOSH J.

The respondent and appellant were divorced in October, 1916, and in June, 1918, the respondent was married to one Norris, and they are now husband and wife. The decree of divorce between respondent and appellant granted the custody of a minor child to the respondent. In 1922 the appellant filed a petition asking to have the custody of the child changed from the respondent to the appellant, whereupon an application was made by the respondent for an order requiring the appellant to pay to her certain sums for costs and temporary attorney's fees. The order was made and this appeal is therefrom. The only question is whether the court had the power to make such an order.

In Dolby v. Dolby, 93 Wash. 350, 160 P. 950, decided in 1916, this court held that, after a divorce has been granted, no order can be made for the payment of suit money and attorney's fees to aid a divorced wife to defend a motion made by her former husband for the modification of the original decree of divorce respecting the child's custody. In 1921 the Legislature, by chapter 109 § 4, added four new sections to the law upon divorce providing for actions and proceedings to change or modify divorce decrees, so that there is now in the law the following provision:

'The court shall have power to cause either party to said action or proceeding to file so much or all of the records and files in the original divorce action or proceeding as the court shall deem necessary or proper; and to make and enter all necessary or proper orders for a full hearing and determination of said petition.'

It is upon the final clause in this section that the order made in the instant case is attempted to be justified. This language however, does not clearly indicate an authority to make the order here appealed from, and to our minds it cannot be correctly interpreted to give such authority. The Legislature must...