Hogberg v. Hogberg

• Decision Date: 18 June 1964
• Docket Number: No. 37142,37142
• Citation: 64 Wn.2d 617,393 P.2d 291
• Court: Washington Supreme Court
• Parties: Daniel A. HOGBERG, Respondent, v. Margaret A. HOGBERG, Appellant.

Page 617

64 Wn.2d 617

393 P.2d 291

Daniel A. HOGBERG, Respondent, v. Margaret A. HOGBERG, Appellant.

No. 37142.

Supreme Court of Washington, Department 1.

June 18, 1964.

McGavick & Sauriol, Donald H. McGavick, Tacoma, for appellant.

Henderson & Connelly, Tacoma, for respondent.

HUNTER, Judge.

Dr. Daniel A. Hogberg married Margaret A. Hogberg, a registered nurse, in October, 1953. They each had three children by prior marriages, and two children born as a result of this marriage were ages six and eight at the time of the divorce trial in February, 1963; the husband was 40 years of age and the wife was 37. In 1953, the plaintiff (respondent) husband practiced medicine in Hoquiam, Washington. From 1955 to 1957, he was a resident in surgery at a Seattle hospital, and since that time has practiced medicine in Morton, Washington. During their marriage, the defendant (appellant) wife has been physically and mentally ill, and was committed to the Western State Hospital on two occasions as a result of using large quantities of narcotic-type drugs.

The husband initiated this divorce action, and the wife cross-complained. Both parties sought a divorce and custody of the children. The trial court granted a divorce to the husband, and he was given custody of the two children of their marriage. The wife's cross-complaint was dismissed.

The court awarded the community property to the husband, and one-half of its value to the wife. The husband, who for the past three years has been earning approximately $35,000 a year, was required to pay the wife her share of the community property ($2,150) within six months, and thereafter $300-per-month alimony for a period of six months. The alimony was reduced to $150 a month for the following 12 months, whereupon the decree provided that it cease. The husband was further required to pay $1,000 to the wife's attorneys. The wife appeals.

The wife first contends that the court erred when it did not award the divorce to her. From our examination of the record and the fact that the wife obtained a divorce by the decree that was entered, we find no prejudice to the wife by the court's failure to grant her a divorce on her cross-complaint. Smith v. Smith, 45 Wash.2d 672, 277 P.2d 339 (1954).

The wife assigns error to the finding of the trial court that the residence property of the parties had a fair market value of only $23,750. It is undisputed that the mortgage balance at the time of trial was $21,500. One witness, an expert appraiser who was familiar with real property values in and about Morton, stated that he had examined the house and appraised its value at $23,750. The husband testified that the value was $22,000, subject to the mortgage. This testimony constitutes substantial evidence to support the trial court's finding, and the assignment of error is therefore without merit.

It is contended that the alimony award is insufficient, and that the trial court abused its discretion by refusing to make a larger award. It is argued that the wife was ill at the time of the divorce and was not able to work; that she is entitled to more alimony than the decree provides since the husband has a high earning capacity. The rules regarding alimony were recently reasserted in Morgan v. Morgan, 59 Wash.2d 639, 369 P.2d 516 (1962):

'Alimony is not a matter of right. When the wife has the ability to earn a living, it is not the policy of the law of this state to give her a perpetual lien on her divorced husband's future income. Warning v. Warning, 40 Wash.2d 903, 247 P.2d 249 (1952); Lockhart v. Lockhart, 145 Wash. 210, 259 P. 385 (1927).

'The criterion adopted by this court for the allowance of alimony includes two factors: (1) the necessities of the wife, and (2) the financial ability of the husband. Murray v. Murray, 26 Wash.2d 370, 174 P.2d 296 (1946); Duncan v. Duncan, 25 Wash.2d 843, 172 P.2d 210 (1946).'

We will first consider the necessities of the wife. The evidence establishes that she had been hospitalized several times for problems related to drug addiction. The parties separated in January, 1962, at which time she was committed by the court to Western State Hospital. Following her release she moved to Tacoma,...