Herzog v. Herzog, 29552.
| Decision Date | 26 July 1945 |
| Docket Number | 29552. |
| Citation | 161 P.2d 142,23 Wn.2d 382 |
| Parties | HERZOG v. HERZOG. |
| Court | Washington Supreme Court |
Department 1.
Action by Stella F. Herzog against Robert E. Herzog on an agreement for support of a minor child. From a judgment for defendant plaintiff appeals.
Affirmed.
Appeal from Superior Court, King County; Clay Allen, Judge.
J. Will Jones and Clarence L. Gere, both of Seattle, for appellant.
Kenneth A. Cole, of Seattle, for respondent.
The trial of an action instituted by defendant in King county superior court for divorce from plaintiff resulted in entry of final decree October 5, 1912, which awarded both parties a divorce and awarded to the wife custody of the minor child of the parties. By that decree the father was required to pay to the mother 'for the support of the said minor child the sum of fifteen ($15) per month until the further order of this court.' In 1923, both parties then being in that jurisdiction, Mrs Herzog commenced an action in California on the King county judgment. Mr. Herzog admitted he was in arrears in payments aggregating $1,000 for support of the minor child. The parties entered into a written contract December 7, 1923 which obligated the ex-husband to pay to his ex-wife the arrears of $1,000 at the rate of $5 monthly, commencing December 1, 1923. The contract was never approved by the court. The contract further provided:
'* * * that the payment of $15.00 per month so ordered by the court in the said decree shall also from the said date of December 1st, 1923, be paid regularly each month on the first day thereof, together with the said sum of $5.00 or more to be applied on the arrears due as aforesaid, thus making under this agreement the sum of not less than Twenty ($20.00) Dollars per month to be paid by the said Robert E. Herzog to the said Stella F. Herzog.
Action was commenced by the divorced wife June 17, 1943 in superior court for King county against her divorced husband for collection of unpaid balance of agreed delinquency of $1,000 and to collect further support payments accruing after December 1923, together with interest on amounts due. Defendant answered and as affirmative defense pleaded the bar of the statute of limitations.
While plaintiff correctly conceded that the decree awarding $15.00 monthly for the child's support had never been modified she insisted that her action was based upon two obligations created by the written agreement of 1923 rather than one upon the agreement and one accrued upon the unmodified support order. Plaintiff admitted in open court that no payments, principal or interest had been made upon either the agreement or support order within six years prior to commencement of this action.
The trial court found that the court's order for support of the minor child was not modified by the 1923 written agreement of plaintiff and defendant; that defendant's liability for further payments under the decree terminated when the child reached its majority, not later than October 17, 1933; that the statute of limitations ran against the last portion of the accumulated payments of the support money under the decree not later than October 17, 1939; that the statute of limitations commenced to run against each of the respective monthly installments of the $1,000 obligation as it became payable; that legal interest running from the effective date of the written agreement, December 1, 1923, matured and became payable on each installment of $5 at the same time that the installment became due, hence the statute of limitations commenced to run at the same time; that all installments except those maturing after July 1, 1940 ($185) had expired; and that interest on the unexpired installments from December 1, 1923, to date of judgment should be included in the recovery awarded. From judgment entered in consonance with the foregoing, plaintiff appealed.
No appeal was taken from the decree of divorce, which was final upon entry October 5, 1912, and that that decree was never set aside or modified appellant concedes. The contention that the obligation of respondent to pay the monthly installments of $15.00 for the support of his minor child was created by the written agreement of 1923 under which appellant agreed to forbear immediate collection of the $1,000 already accrued is not sound. The obligation of respondent for future support of his minor child continued to arise from the decree and the general rules of law pertaining to duration of that liability should be applied, as insisted by counsel for respondent.
That a mother cannot waive the provisions of a decree for a minor child's support needs no citation of sustaining authority. Where, as in the case at bar, the decree makes an award for the benefit of a minor child, the court retains jurisdiction over that child and during the child's minority can modify, enlarge or diminish the decree for the minor child's support. Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L.R.A.1917F, 721.
The father's liability under a decree for the support of a minor child ceases when the child reaches its majority....
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