Jeschke v. Jeschke
| Decision Date | 23 February 1943 |
| Docket Number | 28977. |
| Court | Washington Supreme Court |
| Parties | JESCHKE v. JESCHKE. |
Department 1.
Action by Mary Jeschke against William B. Jeschke for divorce wherein plaintiff obtained an interlocutory decree. From an order modifying the terms of the interlocutory decree defendant appeals.
Affirmed.
Appeal from Superior Court, King County; Charles R. Denney, judge.
Verne C. Henry, of Everett, for appellant.
A. E Dailey, of Everett, for respondent.
This is an appeal from an order modifying the terms of an interlocutory decree of divorce with respect to the future custody of the minor child of the parties to the action.
No statement of facts has been brought to this court and we have merely a transcript of the pleadings and certain orders pertaining to this particular proceeding, together with appellant's brief. A statement of the case is therefore constructed largely from the transcript.
On February 1, 1940, respondent obtained an interlocutory decree of divorce from the appellant. By that decree respondent was awarded the custody of the minor child, and appellant was directed to pay respondent the sum of twenty-five dollars a month for the child's support. Appellant's brief supplies the information that the divorce action was uncontested and, further, that the child was a girl then four years of age.
On March 20, 1941, the interlocutory decree was modified to the extent of giving appellant 'the custody' of the child during Saturday afternoons of each week and prohibiting either party from removing the child from the jurisdiction of the court or beyond the borders of the state until or unless further ordered by the court.
On April 24, 1942, respondent filed in the action her present petition for further modification of the interlocutory decree, alleging that she desired to remarry and for that purpose wished to move to the state of Texas and take the child with her. The petition further alleged that the child would there have a good home and would be properly reared. Pursuant to the prayer of that petition, an order was entered, and on April 29th was served on appellant, directing him to appear in court on May 4th, then and there to show cause, if any he had, why the modification sought by respondent should not be granted.
Appellant appeared in person on the day set and asked for a continuance in order that he might secure counsel. The request was granted and the matter was continued to May 11th. On the last mentioned date, appellant appeared with his attorney and filed a general demurrer to the petition. After argument on that day, the court entered an order overruling the demurrer and directing appellant to proceed forthwith to a hearing on the petition for modification. The order recited that appellant had filed no formal answer, but that it was assumed by the court that a general denial had been entered in his behalf. The order further allowed appellant's exceptions to the overruling of his demurrer and to the decision requiring him to proceed forthwith to a hearing on the merits of the petition.
Evidence was thereupon taken but, lacking a statement of facts, it has not been brought to this court. We therefore do not know what showing was made Before the trial court upon the particular issue here involved. After hearing the evidence, the court entered an order modifying the interlocutory decree to the extent of permitting respondent to remove the child to the state of Texas, but further directing that if she should return to the state of Washington she immediately notify appellant and grant him the right of visitation with the child, as provided in the antecedent order. This appeal followed.
Appellant assigns...
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