Heuchan v. Heuchan

• Decision Date: 09 March 1951
• Docket Number: No. 31550,31550
• Citation: 228 P.2d 470,38 Wn.2d 207
• Parties: , 22 A.L.R.2d 1410 HEUCHAN, v. HEUCHAN.
• Court: Washington Supreme Court

Page 207

38 Wn.2d 207

228 P.2d 470, 22 A.L.R.2d 1410

HEUCHAN, v. HEUCHAN.

No. 31550.

Supreme Court of Washington, Department 1.

March 9, 1951.

Tyre H. Hollander, Seattle, for appellant.

Hyland, Elvidge & Alvord, Seattle, for respondent.

HILL, Justice.

On this appeal, Norman J. Heuchan challenges the jurisdiction of the superior court to make any modification in the alimony award in this case, the propriety of any modification, and the extent and character of the modification made.

After almost thirty years of marriage, during the last five of which they were separated, the Heuchans were divorced in 1937 and Mrs. Heuchan's former name of Mabel Viola Fleetwood was restored to her. There was a property settlement agreement, and we quote from paragraph 5 thereof: "For a period of one year from and after the date of this agreement [January 15, 1937], First Party [Norman J. Heuchan] agrees to pay Second Party [Mable Viola Heuchan, now Fleetwood] the sum of One Hundred Dollars ($100.00) per month, and from and after the expiration of one year from the date hereof he agrees to pay her the sum of Seventy-five Dollars ($75.00) per month; Provided, However, that in the event the salary or income of First Party shall be reduced in the future, the payments to be made to Second Party shall be reduced in the same proportion as the reduction in the salary or income of First Party." (Italics ours.)

This property settlement agreement was not incorporated in or made a part of the interlocutory decree, but the decree did provide that the property settlement agreement was in all respects approved and confirmed, and the parties were '* * * directed to carry out said agreement in all respects just as if the terms thereof had been fixed and established by the decree of this court.'

At that time Mr. Heuchan was employed by a railroad company at a salary of $325 a month.

The final decree was entered July 20, 1937, and Mr. Heuchan married again almost immediately thereafter, his second wife being a widow with two minor children, both of whom are now self-supporting. To avoid confusion, we will hereinafter refer to the first wife, the respondent herein, as Mrs. Fleetwood.

We are now concerned with the third petition for modification of the alimony provisions of the interlocutory decree, being the first by Mrs. Fleetwood. The first by Mr. Heuchan was in 1940. At that time the Honorable Donald A. McDonald, the judge of the King county superior court before whom the hearing was had, raised a question as to whether the monthly payments of seventy-five dollars provided for in the property settlement agreement were actually part of the property settlement or whether they constituted alimony. To secure consideration of his petition, Mr. Heuchan stipulated that the payments were alimony. Judge McDonald then proceeded with the hearing and, April 24, 1940, denied the petition to modify, concluding that there had been no material change in the circumstances of the parties.

Mr. Heuchan continued to receive a salary of $325 a month until November 1, 1945, and paid Mrs. Fleetwodd $75 a month to that date. From November 1, 1945, to July 10, 1946, he was carried as an employee at $100 a month, and on the latter date his employment ceased and his railway pension began. At first the pension was $98.38 a month, but since August 1, 1948, it has been $118.30.

During the period Mr. Heuchan received $100 a month from the railroad company, he paid Mrs. Fleetwood $23.08 a month, that being the same proportion of $100 that $75 is of $325. He made no accounting of other income, and made no payments to her after July, 1946, when he sent a letter stating that, since he was no longer employed, he would make no further payments.

Mrs. Fleetwood was unable to discover Mr. Heuchan's whereabouts for some time thereafter, but finally located him in Salinas, California, and commenced an action there in 1948 to recover back alimony. Mr. Heuchan immediately filed his second petition to modify the interlocutory decree, asking the court to decree that Mrs. Fleetwood was entitled to no alimony, past or future. Mrs. Fleetwood answered the petition, asking for the alimony due her under the terms of the interlocutory decree and alleging that Mr. Heuchan's income had at all times been in excess of $325 a month. The hearing was before the Honorable Howard M. Findley, another judge of the King county superior court.

An audit taken by stipulation showed that Mr. Heuchan had engaged in business transactions, mostly in California, between November 1, 1945, and October 31, 1948, which showed a net income for him and his present marital community in excess of $28,000. Mr. Heuchan and his present wife then had, and still have, a substantial equity in an apartment house in Salinas, California. Title to this property had been transferred to the present Mrs. Heuchan, but the court held that, so far as Mrs. Eleetwood is concerned, Mr. Heuchan still has a community interest in it.

Judge Findley entered an order April 22, 1949, denying Mr. Heuchan's petition for modification of the interlocutory decree and laying down a formula for the determination of the amount due Mrs. Fleetwood under the interlocutory decree, and further ordering '* * * that the defendant Norman J. Heuchan furnish to the plaintiff Mabel V. Heuchan monthly a complete statement of the receipts and disbursements of himself and of the community composed of himself and Bernice L. Heuchan, excluding therefrom payments received from the Railway Employees' Retirement Fund, but including receipts and disbursements produced by any and all property which he may have heretofore or may hereafter transfer to his wife Bernice L. Heuchan; and the said Norman J. Heuchan is hereby ordered, for the purposes hereof, to treat the property which he may have heretofore or may hereafter transfer to his wife Bernice L. Heuchan, and the proceeds and avails thereof, as the property belonging to the community composed of himself and Bernice L. Heuchan; and said defendant Norman J. Heuchan is further directed to pay to the plaintiff herein $75.00 per month or 23.08% of one-half of such monthly net income, if such one-half net income be less than $325.00 per month, all until the further order of the Court.'

Judge Findley applied that formula to the monthly income of Mr. Heuchan for each month from November 1, 1945, to October 31, 1948, and found that the total amount due Mrs. Fleetwood for that three-year period was $1,047.78, of which she had been paid $194.45, and gave her judgment for unpaid alimony as of October 31, 1948, in the amount of $853.33.

Early in July of 1949 the $853.33 was paid, together with an additional $91.83, the latter amount being the total of the alimony Mr. Heuchan calculated to be due for the eight months from November, 1948, to June, 1949, inclusive. An immediate protest was made by Mrs. Fleetwood, both as to the amount and the method of accounting. Further requests in August and September for a more adequate accounting were ignored. The accounting sent with the alimony check for September, 1949, was typical, and was as follows:

                 'October 26th. 1949
                    "September, 1949
                "Rental Income         $388.00
                 Expenses, etc.         328.96
                                       -------
                                       $ 59.04
                       One half          29.52
                       75/325             6.81
                

'Money Order herewith.

N. J. Heuchan [signed].'

Mr. Heuchan has the effrontery to argue that such a statement was a compliance with the requirement of Judge Findley's order that he furnish 'a complete statement of the receipts and disbursements of himself and of the community composed of himself and Bernice L. Heuchan.' Not until after Mrs. Fleetwood commenced the present proceeding, a petition for modification verified November 3, 1949, asking for $75 each month and alleging that the alimony provisions of the interlocutory decree were ineffectual and unworkable, did Mr. Heuchan furnish any breakdown as to the character of the disbursements.

The petition was heard by the Honorable Theodore S. Turner, yet another judge of the King county superior court, in April of 1950. His findings stated numerous changes in conditions since the original interlocutory decree of January 15, 1937, and justified a reconsideration of the alimony provision of that decree. He found that Mrs. Fleetwood's financial needs amounted to not less than $134.75 on a monthly basis, that she received monthly payments of $59.75 from the sale of certain property (there being an unpaid balance of approximately $3,000 on that property), and that she had no other resources. He found that Mr. Heuchan and his present wife had an average net income of $171.50 from the apartment house operated by them, and occupied an apartment therein having a reasonable rental value of $70 a month; that Mr. Heuchan received a railway pension of $118.30 a month; and that his present wife earned an average of $20 a week as a beautician. Judge Turner concluded that Mr. Heuchan had the present ability to pay Mrs. Fleetwood the sum of $60 a month, and that, if his financial circumstances improved, he should pay more. Based on those findings, he modified the original interlocutory decree on May 23, 1950, by directing Mr. Heuchan to pay Mrs. Fleetwood $60 a month. It is from that order that this appeal is taken.

Appellant first challenges the decree on the basis that the superior court never acquired jurisdiction in this cause. Appellant's position is that since 1945 he has been a resident of Salinas, California; that his attorney of record in his 1940 and 1948 attempts at modification had withdrawn from the case; and that, consequently, the court acquired no jurisdiction over appellant's person, although a copy of the petition for modification and a certified copy of an order to show cause why the petition should not be granted were served upon him by mail at his Salinas address and were personally served...