Hughes v. Hughes

• Decision Date: 18 June 1974
• Docket Number: No. 1071--II,1071--II
• Citation: 524 P.2d 472,11 Wn.App. 454
• Parties: Jacqualine E. HUGHES, Respondent, v. Lorne F. HUGHES, Appellant.
• Court: Washington Court of Appeals

Page 454

11 Wn.App. 454

524 P.2d 472

Jacqualine E. HUGHES, Respondent, v. Lorne F. HUGHES, Appellant.

No. 1071--II.

Court of Appeals of Washington, Division 2.

June 18, 1974.

M. H. Hemmen ofHemmen & Cohoe, Tacoma, for appellant.

Paul Hoffman, Jr., of McCormick, Hoffman, Ress & Arnold, Tacoma, for respondent.

ARMSTRONG, Judge.

Lorne F. Hughes appeals from the denial of his claim against his ex-wife seeking to recover contribution for sums expended by him in support of the minor children of the parties while the children were living in the father's custody pursuant to a divorce decree. We affirm the trial court's ruling that the father in this case is not entitled to contribution from the mother for past child support.

Lorne F. Hughes and Jacqueline E. Hughes were divorced on November 3, 1967. Both parties, through their pleadings in the divorce action, requested custody of the three minor children of the marriage, and included in their pleadings a request for child support. At the time of the divorce the children ranged in age from 14 to 19 years.

Both spouses agreed prior to trial of the divorce action that custody of the children was to be awarded to the husband. The major issues actually argued at trial concerned the disposition of the marital property. The final divorce decree provided in relevant part that 'care, custody and control' of the children be awarded to the husband. The decree provided further that the husband was entitled to possession of a residence located in the Lakewood area of Tacoma, Washington, until the youngest child reached 21 years of age. It is apparent that the provision granting the father temporary possession of the residence, rather than permanently disposing of the property at the time of the divorce, was for the benefit of the children during their minority. Upon the sale of the residence the wife was to receive a minimum of $9,000, or 60 percent of the proceeds from the sale of the residence. If at any time the residence was rented, the husband was required to pay the wife the sum of $50 per month. The final divorce decree made no other express provisions for the custody and support of the minor children.

In September of 1968, after slightly less than one year from the divorce decree, the mother petitioned for modification of the decree to obtain custody of the younger daughter, and requested support for the child. The father answered, opposing the mother's petition, and included a counterclaim requesting that the decree be modified to require the mother to pay child support to him. By stipulation both these affirmative claims were dismissed without prejudice.

The instant controversy arose in September of 1972, almost five years subsequent to the divorce decree, when the wife petitioned the superior court to enforce the provision regarding the residence in Lakewood. The trial court entered judgment in favor of the wife in the amount of $12,311.40, to be paid in 30 days; if the judgment were not paid within 30 days, the wife was to receive the greater of $9,000 or 60 percent of the proceeds of the sale of the residence. There is no appeal from this part of the judgment. The husband, however, appeals from the trial court's denial of his counterclaim for a set-off of $4,400, allegedly representing 50 percent of sums expended by him in support of the minor children while in his custody.

The law which we have determined to be applicable here is that in this state both the father and mother of minor children are responsible for the support of the children, and that this coequal obligation remains upon both parents after a divorce, unless the divorce court, in the exercise of its discretion in providing for the support of the children and in making a just and equitable disposition of the property of the parties, determines that some other share should be imposed on either the father or mother. If the joint support obligation is not changed by the divorce court, a parent who has had custody of minor children may later recover contribution for not more than one-half of the amount expended in maintaining them. However, where the trial court properly exercises its broad discretion, and imposes a support obligation of more or less than one-half upon one of the parents, as we find the court did in this case, the parties are bound by that determination, absent a change of circumstances that would justify a modification of the divorce decree.

The origin in this state of the rule of law applicable here can be traced to a pair of early opinions in which the court simply rejected the notion that an award of custody to the mother frees the father from all liability for the support of the child on the ground that the award of custody to the mother deprives the father of all right to the services of the child. Gibson v. Gibson, 18 Wash. 489, 51 P. 1041 (1898); Ditmar v. Ditmar, 27 Wash. 13, 67 P. 353 (1901). In both cases the holding of the court was that a divorced mother with custody of minor children may maintain an action against the father for the maintenance of the children.

It was largely upon the holdings in these two cases that the court based its opinion in the cornerstone case in this area, Hector v. Hector, 51 Wash. 434, 99 P. 13 (1909). There the wife was granted a divorce from the husband pursuant to a decree awarding her custody of a minor child, but making no provisions for its support and maintenance during its minority. Approximately 10 months after the decree, the wife commenced an action and obtained judgment against the father for the entire amount of sums expended by her in support of the child up to the date of the action, plus a further sum per month for future support.

The action evoked the court's strong disfavor, for the obvious reason that claims of this nature should be determined in the divorce action. The court stated in Hector at page 440, 99 P. at page 16:

The practice of litigating questions of this kind by piecemeal cannot be too strongly condemned. Here the parties settled their property rights, and in all probability the issues in the divorce action, and a decree was entered making no provision whatever for the support or maintenance of the minor child. Almost immediately the wife begins to assert claims against the husband which should have been determined and adjusted in the divorce action. Such a practice is neither in the interest of the parties nor in the interest of society at large.

Nevertheless, the court upheld the right of the wife to recover contribution for child support expenses previously incurred, but remanded with directions to ascertain the sums expended to maintain the child and to enter judgment for One-half thereof. The judgment was to be one-half of the expenses incurred because of the court's holding that a parent's child support obligation is the same after divorce as before, unless the divorce decree provides otherwise, and that

(T)he obligation of the father and mother in this state in relation to the maintenance and support of their minor children is joint and several, and not primary and secondary as at common law. And when the mother supports and maintains the children, she is but performing an obligation which the law imposes jointly upon her and the father, and we know of no principle of law that would permit her to recover the entire expense of such maintenance and support from her joint obligor.

Hector v. Hector, Supra, at 439, 99 P. at 15. This holding involved a rejection of the common law rule followed in some other jurisdictions that the husband is primarily liable for the support of his minor child, and adoption of the rule that the duty of support rests equally upon both parents. The holding was predicated entirely upon the enactment by the legislature of what is now RCW 26.16.205, which then provided:

The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.

Bal.Code, § 4508 (P.C. § 3874); Rem.Rev.Stat. § 6906; RCW 26.20.010.

The next significant case concerning the development of the rule of law we deem applicable here was Hilleware v. Helleware, 104 Wash. 361, 176 P. 330 (1918). In that case the wife obtained a decree of divorce which was silent as to the question of child support. Subsequent to an affirmance of the decree following an appeal by the husband, the wife received a judgment for one-half of the expenses of supporting a child during its minority while in the mother's custody. In a second appeal the court affirmed the rule that absent a provision for support in the divorce decree the parent with custody may wage a separate action for contribution. The court rejected the claims of the husband that the decree did not express the true intention of the trial court that property awarded in the decree to the wife be used for support, and alternatively, that the question of contribution was res judicata as having been litigated in the prior action. Hilleware v. Hilleware, Supra, at 362, 176 P. 330.

The question of child support where there is no provision in the divorce decree again arises in State ex rel. Ranken v. Superior Court, 6 Wash.2d 90, 106 P.2d 1082 (1940). There the court resolved two major issues. The court first held that whether or not there is a provision in the original divorce decree for the maintenance and welfare of a minor child, the divorce court retains continuing subject matter jurisdiction over the question of custody and support of Minor children of the marriage. Secondly, the court noted that the principle of contribution was well recognized, but further pointed out at page 99, 106 P.2d at page 1086:

Relief of that sort, however, must be sought in an independent action, because, in that situation, the divorced wife is not seeking support for the children, but seeks, rather, reimbursement to herself for past...