High v. High

• Decision Date: 09 January 1953
• Docket Number: No. 32015,32015
• Citation: 252 P.2d 272,41 Wn.2d 811
• Court: Washington Supreme Court
• Parties: HIGH, v. HIGH.

Page 811

41 Wn.2d 811

252 P.2d 272

HIGH, v. HIGH.

No. 32015.

Supreme Court of Washington, Department 2.

Jan. 9, 1953.

Rehearing Denied March 5, 1953.

Donald F. Jennings and James Tynan, Everett, for appellant.

George Olson and George F. Ward, Seattle, for respondent.

FINLEY, Justice.

A default divorce decree, rendered on September 23, 1949, in King county, Washington, in an action by Jessie High against Harold High, awarded Jessie a divorce and the custody of a child. It provided for monthly child-support payments, allowed attorney's fees to the wife, and made a division of the property of the parties.

Subsequently, Harold High succeeded in having the default decree vacated insofar as it had adjudicated property rights and had allowed attorney fees to the wife. In other respects, the decree was permitted to stand. The order of the court (quoted in part hereinafter), vacating the property division made previously by the court in the divorce action, provided that either spouse could, within sixty days, commence an action to secure a division of the property. Harold High commenced such an action. Therein, the superior court again decreed a division of the property. In the case before us, Harold High appeals from the second property division made by the court.

An understanding of the questions raised herein requires some knowledge of the facts leading up to this appeal. Harold, appellant, and Jessie, respondent, lived together as man and wife from 1931 until 1948, in the good faith, but the mistaken brief, that a common-law marriage is valid in this state. In this same period, they adopted a child. Together, they operated a business located on Bothell Way in King County, known as High's Rustic Cedar Co. The record shows this business was one initially acquired by Jessie from her family. With the proceeds of the business, the parties acquired three separate tracts of land, located in Douglas and Snohomish counties, Washington.

The parties had a falling out. They could not compose their differences and decided to separate. On the advice of an attorney, ostensibly for the purpose of eliminating doubts as to the status of their adopted child, the parties were married in the state of Idaho, with the understanding that they would be divorced immediately. A week after the marriage, they met again in the office of the attorney, and Harold High, the husband, executed documents whereby Jessie High, the wife, acquired a one-half interest in High's Rustic Cedar Co., and an undivided-half interest in the three separate land tracts. The parties also decided that Jessie would continue to run the business (High's Rustic Cedar Co.), while Harold would commence and conduct a logging venture on his own with a business partner of his choice. At this same meeting, Harold was served with a summons in Jessie High's divorce action against him. Although he denies the summons was served upon him, it is undisputed that he had knowledge of the pendency of the divorce action.

In the ninety-day waiting period relative to the divorce action, two things happened which bear upon the property division which we ultimately affirm herein. First, Harold incurred substantial losses in his independent logging venture or business, and the losses were paid by Jessie. Secondly, Harold refused to have any part of a zoning suit commenced by King County to stop the operation of the business (High's Rustic Cedar Co.) on the Bothell Way property; however, Jessie evinced a desire to save the business, and spent fourteen hundred dollars in attorney's fees successfully defending the zoning suit. See King County v. High, 36 Wash.2d 580, 219 P.2d 118, 18 A.L.R.2d 722. Jessie claims that, during this period, the parties entered into an oral modification of their prior property settlement agreement. As modified, Jessie got the business, that it, High's Rustic Cedar Co.; and Harold took as his separate property certain heavy logging equipment theretofore owned jointly by both parties.

On September 23, 1949, as mentioned above, a default divorce decree was entered against Harold High. Subsequently in February, 1950, after he had failed in his separate logging venture, he claimed he had been excluded improperly from the High's Rustic Cedar business, and, as indicated above, he succeeded in having the divorce decree set aside insofar as it had adjudicated property rights, and insofar as it awarded attorney's fees to Jessie High. As pointed out above, the trial court's order provided that either party, within sixty days, could bring an action to secure a division of their property, and further provided:

'* * * that in said action the Court shall have the same powers to make such division of property and impose terms and conditions in connection with such division as * * * [it] would have had in an action for divorce between the parties under the divorce statutes of the State of Washington, * * * and upon the institution of said action, the Court shall have the same power to award the temporary possession of all or any of such property pending the final determination of the action on the same terms and conditions that such Court would have in an action of divorce between the parties.'

The proceeding commenced by Harold High under the above court order was designated in his complaint as a 'partition' suit. Jessie cross-complained on the basis of the alleged oral modification of the original antenuptial property settlement agreement. The trial court denied plaintiff husband's prayer for appointment of a receiver. Such appointment would have been a normal step in an action to partition property. Near the end of a trial without a jury, Harold's attorney made a trial amendment in his client's complaint, whereby he incorporated paragraph V of the cross-complaint of the wife, Jessie, which listed all of the property of the parties. The prayer of Harold's complaint also was changed to ask that all of the property be 'partitioned justly and equitably.' The parties were allowed time to complete an inventory or list of their property with a view to having values determined and a division of the property made later on by the court.

At a hearing held some months later, the trial court found, among other things, that the logging equipment owned by the parties was worth $20,000 at the time it was taken by Harold High for use in his logging venture, and that it had depreciated substantially to a value of $8,850. The record shows the depreciation resulted from Harold's neglect in abandoning the equipment in the mountains, exposed to the elements. The court also found that Jessie had advanced some $3,800 to pay Harold's debts, incurred in his logging venture. In a short oral opinion, the trial judge indicated the value of the Bothell Way property, with the business thereon, was 'approximately equal in net value' to the logging equipment appellant had received. The court then awarded the Bothell Way property, with the business thereon, to defendant wife, subject to outstanding debts of the business. The personal property, consisting mainly of the heavy logging equipment and trucks, was awarded to plaintiff husband. As to the separate tracts of land, the court ordered that they be sold by the parties within six months, and that the net proceeds be divided equally between them; but provided that, if the tracts were not sold within that time, either party could apply for an order to have the property sold at public sale.

First, we note that neither the trial court nor the litigants mentioned the effect of Rem.Supp.1949, § 997-11, cf. RCW 26.08.110; cf. Rem.Rev.Stat. § 988, providing, inter alia, that a divorce decree as 'to the custody, management and division of property shall be final and conclusive', subject only to an appeal.

Since the present state of the record gives no clue whatsoever as to the statutory ground for vacating the default decree, it must be presumed that some proper ground existed. State v. Lindsey, 150 Wash. 121, 272 P. 72. In earlier decisions involving the question of the finality of a divorce decree as to property matters, we have indicated that the court can entertain vacation proceedings in appropriate cases where the time for an appeal has elapsed. State ex rel. Gaupseth v. Superior Court, 24 Wash.2d 371, 164 P.2d 890; Kern v. Kern, 28 Wash.2d 617, 183 P.2d 811.

Without detailing at length the facts of Cassutt v. Cassutt, 126 Wash. 17, 217 P. 35, Brown v. Brown, 192 Wash. 333, 73 P.2d 795, and Ford v. Ford, 22 Wash.2d [252 P.2d 275] 303, 155 P.2d 485, we are of the opinion that the trial court, in setting aside the default divorce decree as to property rights and ordering that either party could commence an action for a division of their property within sixty days, did not adopt the practices we forbade in those cases. The order of the court vacating the initial property division did not substitute another division of the property; therefore, the court, at that stage of the matter, did not purport to retain a continuing jurisdiction over the parties' property for the purposes of modification and alteration contrary to the rule of the Cassutt, Brown and Ford cases. In substance, the court merely continued the hearing and deferred all action as to a division of the property until a later date, at which time the parties could present testimony and argument respecting the merits of their conflicting claims to the property.

The assignment of error attacking the failure of the trial court to abide by the partition statutes is without merit. We need not decide whether this action ever was a partition suit, or whether the appellant could change the terms of the vacation order by his own characterization of the suit as one for a partition, for the record clearly shows the appellant expressly abandoned any such theory in the trial court. This abandonment is shown by his trial amendment, made just before the court's oral decision, whereby appellant (...