Johns v. Johns, 37008

• Decision Date: 02 July 1964
• Docket Number: No. 37008,37008
• Citation: 64 Wn.2d 696,393 P.2d 948
• Court: Washington Supreme Court
• Parties: Arthur R. JOHNS, Appellant, v. Barbara L. JOHNS, now Barbara L. Foster, Respondent.

Page 696

64 Wn.2d 696

393 P.2d 948

Arthur R. JOHNS, Appellant, v. Barbara L. JOHNS, now Barbara L. Foster, Respondent.

No. 37008.

Supreme Court of Washington, Department 2.

July 2, 1964.

Gerald D. Hile, Seattle, for appellant.

Mary E. Burrus, Seattle, for respondent.

DONWORTH, Judge.

This is an appeal by the former husband or respondent (whose name is now Barbara L. Foster) from an order of the Superior Court of King County dismissing his petition to modify a default decree of divorce granted him by the Superior Court of Grays Harbor County on December 13, 1957.

Appellant's petition (filed June 15, 1962) alleged that, by the original divorce decree, he was ordered to pay $40 per month for the support of a daughter (the older of two children who were born during the period of their marriage, which took place in Seattle in May, 1954). It was further alleged that he had always denied the paternity of these children, and that respondent had admitted to him that this daughter, born October 24, 1955, was not his child.

The change of conditions alleged to have occurred since the entry of the divorce decree was that appellant's take-home pay was then approximately $95 per week and that he had remarried and had to support his wife and three small children (the issue of the second marriage).

This petition concluded with this allegation:

'* * * Furthermore on August 12, 1959 Superior Court Judge William G. Long of the State of Washington in and for King County sitting as the King County Juvenile Judge in Juvenile Case Number 305255 made a finding that Arthur R. Johns, the plaintiff, is not the father of any of the three children including said * * * who were born in wedlock to the defendant herein at a time when the plaintiff was married to her and the order of the court relieved him of all duty of supporting any of the three children. ¹ That this finding of Judge Long is determinative of the issue especially in view of the fact that the defendant did not appeal.'

Respondent's answer denied only the allegations relating to the paternity of the daughter and the validity of the proceedings in the juvenile court.

At the hearing on appellant's petition, it was admitted that the three children (referred to in appellant's petition) became wards of the juvenile court and that the eldest child was then in the physical custody of respondent, subject to the juvenile court's supervision.

Also introduced at the hearing was a certified copy of Judge Long's order of August 9, 1959, which was alleged in appellant's petition to be determinative of the paternity issue.

At the conclusion of appellant's case, respondent challenged the sufficiency of the evidence to show any change of circumstances since the divorce, and particularly challenged the validity of Judge Long's order as to the issue of paternity.

In sustaining this challenge, the trial court stated in its oral decision:

'The Court: In the opinion of the court if Judge long had had the Grays Harbor decree before him, I seriously doubt if he would ever have made a finding such as he did make on the question of paternity. In my opinion had it been presented, he would have ruled that it was a matter of res adjudicata then, and I think it is a matter of res adjudicata now.

'The Grays Harbor decree starts out with this language:

"This cause, coming on for trial on this 13th day of December, 1957, plaintiff appearing in person and being represented by his attorney, Omar S. Parker, and the defendant appearing not, her default having been duly entered herein, and the Prosecuting Attorney resisting said action on the part of the State of Washington, and evidence having been introduced in said cause, and the Court having made its Findings of Fact and Conclusions of Law * * *.'

'When he goes into court and represents to the court that these are the children of this marriage and the decree is entered on that basis, I do not think that he can come back at a later date and on a showing such as this upset that decree.

'In the case which you first cited and which I again read, the one that went up from Judge Findley's court, ² there both parties were in petitioning for a modification, and both agreed that the child was not the father's and was not the issue of the marriage. That makes it an entirely different situation than we have before us. The supreme court there carefully abstained from writing an opinion or implying what they would say if this arose under circumstances such as these, where there was a plea of jurisdiction or one other situation.

'Entertaining those views, I will sustain the present challenge and deny the prayer of the petitioner for the modification.'

The trial court accordingly entered its order dismissing appellant's petition for modification of the default decree of divorce entered by the Superior Court for Grays Harbor County and granted respondent an additional judgment of $100 against appellant for her attorney fees in the modification proceeding.

In support of his appeal from the aforesaid order, appellant makes three assignments of error:

1. The trial court erred in its ruling which precluded appellant from introducing evidence to show that he was not the father of the oldest child.

2. The trial court erred in failing to hold that the order of the juvenile court of August 12, 1959 was res judicata of the paternity issue in the modification proceedings.

3. The trial court erred in making an award of attorney fees to respondent.

Regarding appellant's first assignment of error, the trial court sustained respondent's objection to any testimony as to events that occurred prior to the entry of the decree of divorce on December 13, 1957. Appellant made no offer of proof regarding such events, so there is nothing for us to pass upon.

Appellant's second assignment is that the trial court declined to hold that the juvenile court's order of August 12, 1959, finding that appellant was not the father of the older child, who was born during the period of the marriage, was res judicata of the issue of paternity. There are several reasons which, in our opinion, amply sustain the trial court's ruling on this issue.

First, appellant obtained the original divorce decree (respondent having previously been declared in default for want of an appearance) on the basis of a complaint which did not raise any issue as to the paternity of either child. Furthermore, he presented to the court for signature a decree which stated that these two children were 'minor children of the parties hereto' and directed him to pay $80 per month for their support. He thereby represented to the Superior Court of Grays Harbor County that this child was legitimate. As the trial court stated in its oral decision appellant cannot, on a petition for modification, disregard the original divorce which is res judicata...