Jones v. Jones

• Decision Date: 10 May 1956
• Docket Number: No. 33187,33187
• Citation: 54 A.L.R.2d 1403,48 Wn.2d 862,296 P.2d 1010
• Parties: , 54 A.L.R.2d 1403 Miriam JONES, Respondent, v. Lorenzo E. JONES, Appellant.
• Court: Washington Supreme Court

Page 862

48 Wn.2d 862

296 P.2d 1010, 54 A.L.R.2d 1403

Miriam JONES, Respondent, v. Lorenzo E. JONES, Appellant.

No. 33187.

Supreme Court of Washington, En Banc.

May 10, 1956.

Wright & Wright, Seattle, for appellant.

Oliver J. Neibel, Jr., Montlake Terrace, W. L. Gibbon, Seattle, for respondent.

FINLEY, Justice.

This is a domestic relations case.

In 1953, plaintiff wife instituted an action for separate maintenance. On April 7, 1954, defendant husband filed an amended cross-complaint for annulment and alleged that, at the time of the marriage of the parties, he was not divorced from a previous wife.

As a preliminary matter, the plaintiff wife was awarded temporary attorney's fees of $100, and was awarded on half of the net monthly earnings of the husband as temporary support money. Up to the date of the trial of the annulment action, the husband had paid only the sum of $75; consequently, the delinquent monthly payments amounted to a sizable sum. The parties agreed that the question of the amount of the accrued unpaid support money would be submitted to the court for the entry of judgment thereon in connection with the disposition of the annulment action.

The trial judge, finding that the marriage was void ab initio, entered a decree of annulment. On conflicting testimony, he found that the husband's net monthly earnings were approximately $480.79. He entered judgment for the wife in the sum of $1,923.16, representing the accrued unpaid portions of the husband's net earnings previously awarded to her as temporary support. The wife was awarded the sum of $775 in liew of a division of the property of the parties, and to secure payment thereof a lien was impressed upon the husband's Jaguar automobile and his sail boat. Custody of the minor child of the parties was given to the wife, subject to reasonable visitation by the husband at the wife's home under her supervision and control. War bonds in the amount of $400 and a $2,000 endowment insurance policy on her own life were awarded to the wife, as well as court costs, $500 additional attorney's fees, $50 per month for support of the minor child, and one hundred fifty dollars per month alimony. The alimony was granted for a period of fourteen months from the date of the decree of annulment. The court further ordered that the husband should keep up a life insurance policy on himself in the amount of $12,000 maintaining the wife and child as the beneficiaries thereof until the child should become eighteen years of age. The husband has appealed.

We are convinced that the only question raised by appellant's assignments of error which merits consideration on this appeal is whether statutory authority exists in this state for the allowance of the monthly alimony payments for the period of fourteen months, commencing after the entry of the decree of annulment in which the marriage was held to be void ab initio.

It has been said, and rightly so, that alimony was unknown to the common law; that it is a creature of statute. No citation of authority should be necessary for the proposition that alimony in divorce and annulment cases involves a question of public policy peculiarly within the province of the legislature, and that the legislature has the power and can authorize the courts to grant alimony in divorce and annulment cases. II Vernier, American Family Laws, 65, § 73, et seq., reports that in a number of states alimony is awarded by the courts in connection with the termination of void marriages through application of the general divorce statutes of such states. In I Vernier, supra, § 53, it is also indicated that the legislatures of several other states have enacted specific statutes relative to annulment, which clearly authorize the courts, in their discretion, to award alimony in cases of annulment of a marriage void ab initio.

Prior to the enactment of chapter 215, Laws 1949, this court recognized the general rule that, where the husband seeks annulment of a marriage on the ground of a prior marriage of the wife, the latter is entitled to alimony pendente lite until the invalidity of the marriage is clearly proved. Davis v. Davis, 12 Wash.2d 499, 122 P.2d 497. In the early case of Arey v. Arey, 22 Wash. 261, 60 P. 724, the wife brought an action to annul an illegal marriage on the ground of nonage, and the court held that she was entitled to an allowance of suit money and alimony pendente lite.

In some instances of legal import, the general statement has been made that the granting of alimony is dependent upon the prior existence of a valid marriage contract; but, as in the case of many broad, sweeping legal generalizations, this one is subject to considerable critical analysis.

In Johnson v. Johnson, 295 N.Y. 477, 68 N.E.2d 499, 500, the New York court of appeals stated:

'True enough, the prime evil which the commission sought to remedy was the unhappy plight of the innocent wife married to a bigamist husband; under the law as it then existed, she could terminate this undesirable and illegal relationship only at the cost of relinquishing all claim to support, while the offending husband could, at his pleasure, avail himself of the invalidity of a marriage--void because of his own misdeed--and slough off the financial responsibilities which he had voluntarily assumed. Nevertheless, the commission obviously did not desire to restrict the application of the statute to that situation alone, * * *.'

In Fowler v. Fowler, 97 N.H. 216, 84 A.2d 836, 838, the supreme court of New Hampshire held that the statutory authority to award alimony to a wife in an annulment, suit is not affected by the fact that the marriage is void ab initio, and said:

'The authority of the court derives from the statute, and is in no way made to depend upon the existence of a marriage which was merely voidable, rather than void. * * * Common law principles which might produce a different result do not apply. * * *'

In I Vernier, American Family Laws, 266, § 53, the author recognizes that there is some difference of opinion relative to the granting of alimony in annulment suits. However, he also recognizes the facts of life--that alimony is often justified upon practicable moral or social considerations, or upon equitable grounds in annulment cases. The author states:

'* * * The nature of annulment being a restoration of the parties to their former status, their rights of property existent at the time of marriage must be protected. But the mere restoration of rights would, in many cases, not guarantee justice to the parties. The marriage, although voidable, may have given rise to effects that cannot be equitably eradicated by a mere revival of the pre-marital status. Broadly speaking the same considerations may be present in marriages terminated by annulment as through divorce, and the same rights and remedies would seem to be applicable.'

The above-quoted authorities are of some interest and significance relative to the wisdom inherent in any legislative judgment that alimony should be granted on a fair and equitable basis in the discretion of the courts in annulment cases. Admittedly, the references are not conclusive authority, bearing upon the question of whether our state legislature authorized the granting of alimony in annulment cases by enacting chapter 215, Laws 1949.

In the recent case of Loomis v. Loomis, Wash., 288 P.2d 235, we held that the legislature, in enacting chapter 215, Laws 1949, authorized the granting of alimony in cases of divorce. In our judgment, for the reasons indicated hereinafter, the Loomis case is controlling relative to the question in the case at bar.

It should be crystal clear that, in enacting chapter 215, Laws of 1949, the legislature completely rewrote the divorce and annulment laws of our state. The title of the act is indicative of this. It reads:

'An Act relating to the dissolution of marriage by divorce or annulment, separate maintenance, the custody of children, division of property, allowances for support, prescribing procedure and duties of prosecuting attorneys in connection therewith and repealing certain prior inconsistent statutes.'

In sections 8, 9, 11, 12, 13, 14, 15, 16 and 17 of the act, the legislature in referring to divorce, also consistently referred in conjunction therewith to the matter of annulment. Section 11 of the act (cf. RCW 26.08.110) reads as follows:

'Sec. 11. In all cases where the Court shall grant a divorce or annulment, it shall be for cause distinctly stated in the complaint, proved, and found by the Court. Upon the conclusion of a divorce or annulment trial, the Court must make and enter findings of fact and conclusions of law. If the Court determines that either party, or both, is entitled to a divorce or annulment, judgment shall be entered accordingly, granting the party in whose favor the Court decides a decree of full and complete divorce or annulment, and making such disposition of the property of the parties, either community or separate, as shall appear just and equitable, having regard to the respective merits of the parties, to the condition in which they will be left by such divorce or annulment, to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shll make provision for costs, and for the custody, support and education of the minor children of such marriage. Such decree as to alimony and the care, custody, support and education of children may be modified, altered and revised by the Court from time to time as circumstances may require. Such decree, however, as to the dissolution of the marital relation and to the custody, management and division of property shall be final and conclusive upon both parties subject only to the right to appeal as in civil cases, and provided that the Trial Court shall at all times including the pendency of any appeal, have the power to grant any and all restraining orders...