Herrett v. Herrett

• Decision Date: 22 July 1914
• Docket Number: 11784.
• Citation: 141 P. 1158,80 Wash. 474
• Parties: HERRETT v. HERRETT.
• Court: Washington Supreme Court

141 P. 1158

80 Wash. 474

HERRETT v. HERRETT.

No. 11784.

Supreme Court of Washington

July 22, 1914

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Alice Herrett against Atherton U. Herrett. Application by the complainant to modify a divorce decree in so far as it related to visitation of children to defendant, and for an increase in alimony. From a judgment granting such relief defendant appeals. Reversed and remanded, with directions to reinstate the former decree.

Moore, Wardall, Wardall & Martin, of Seattle, for appellant.

Henry W. Pennock, of Seattle, for respondent.

CHADWICK J.

This case has been before this court, and is reported in 60 Wash 607, 111 P. 867. The decree formerly entered provided that the children of the parties should be allowed to visit the father at stated intervals, and that the father should have the right to the sole care and custody of the children for a period of one month in the summer time. In the fall of 1912 the father remarried. After the children had visited the father once or twice in his home and his place of business the mother refused to allow them to visit him any more unless he would agree to entertain them away from his home and out of the presence of his wife. When the time came for the father to take the children for the summer, the respondent positively refused to allow him to have the children unless he would agree with her that he would not allow them to meet his present wife. He thereupon asked that the respondent be cited for contempt. This was met by a countermovement on the part of the respondent, who filed a motion asking for an increased allowance of alimony. The two motions or rules coming on for hearing at the same time, the court found, after taking the evidence of the parties, that the conditions had so changed that a modification of the former decree was warranted, as it had been provided therein that it might be from time to time as the court might find it necessary to do so. The court found that hereafter said children 'may not be entertained by or in the presence or company of the plaintiff's present wife,' and further found, in so far as the original decree refers to the summer vacation, that it should be qualified with the following proviso:

'Provided the present wife of the plaintiff shall not be in the company of said children nor entertain them during any part of said period.'

The original decree was further modified by increasing the allowance of alimony from $75 to $90 per month.

The only evidence, if it can be said that the testimony rises to the dignity of evidence, warranting a modification of the decree in so far as it pertains to the children is that the present wife on one occasion gave two of the smaller children each a bright new penny, and that she baked some cookies, which were given to them either by her or by her husband, and had also baked a birthday cake for one of the little ones. This so offended respondent that she sought the advice of her former counsel, who told her that she 'did not have to stand it.' It was then that she refused to allow the children to visit the father. The present wife is a woman of good character; at one time she had been employed in the home of the parties to this action. There is not one word of aspersion against her character or against the home she maintains. Indeed, it seems to us that the things she did were no more than the performance of a duty she owed to her husband and to his children. We find no disposition or purpose to wean the affection of the children away from the appellant. It is not contended that she has ever at any time, by word or act, sought to violate any rule of propriety or the legal rights of the parties concerned. The respondent at all times thought well of appellant's present wife while she was employed in their home. She was, according to her own testimony, the best girl she ever had. There is no suggestion in the record that she was instrumental in bringing about the trouble culminating in the divorce, or that she kept company in any way with appellant until a short time before their marriage. So far as the record goes the present wife was just human. Had she been otherwise respondent might have cause to complain. In contrast with the wife's conduct, it is very apparent to us that the respondent has not kept proper faith with her husband, who, notwithstanding the troubles they may have had, has an equal interest and, so far as the record shows, an equal affection for the children. One of the little ones was a witness, and the instillation of prejudice is very apparent from her testimony.

'Q. You used to be very found of your papa? A. Yes, sir. Q. Would you say that you have treated your papa with the same affection during these last six months or year that you formerly did? A. No, I don't. Q. Why should you treat your father differently? A. He went and ruined my mother and he married another lady. Q. That is the reason you don't love your papa? A. Yes, sir.'

Respondent testifying, says that one of the smaller children had told her that he would never have eaten the cookies 'if he had known they came from her [meaning the present wife].' Such sentiments, if they were expressed by the child who was of tender...