Kern v. Kern
| Decision Date | 07 August 1947 |
| Docket Number | 30115. |
| Citation | 28 Wn.2d 617,183 P.2d 811 |
| Parties | KERN v. KERN et al. |
| Court | Washington Supreme Court |
Department 2
Proceeding on the application by Mary M. Kern opposed by Irwin Oscar Kern and another to set aside an interlocutory divorce decree insofar as it vested title to a dwelling in spouses' minor children. From an adverse order, plaintiff appeals.
Affirmed.
Appeal from Superior Court, Pierce County; F. G. Remann, Judge.
Harry H. Johnston, of Tacoma, for appellant.
Wendell W. Duncan, of Tacoma, for respondents.
In this case a modified interlocutory decree of divorce was entered October 21, 1943. It provided among other things that title to the dwelling belonging to the parties should be vested in the minor children of the parties as tenants in common, with the right of the appellant, Mary M. Kern, to occupy it so long as she maintained it as a home for them. She caused the final decree to be entered.
On June 10, 1946, appellant petitioned the court to set aside its decree insofar as it vested title to the property in the children. A guardian ad litem was appointed to represent them. He interposed a demurrer to the petition. A hearing was had and the court sustained the demurrer and dismissed the petition. From this ruling she has appealed.
Appellant contends that that part of the decree which vested title to the property in the children of the parties was void because the court had no jurisdiction to enter it. This is placed upon the ground that the powers of the court are derived from the statute which does not grant such a power. We quote her contention: 'We concede that the court could have placed a lien upon the property to secure the payment of this support money and its action would have been legal, but no language can be found in the statute authorizing him to vest the title to this real property in the minor children.'
Rem.Rev.Stat § 989, provides as follows: 'In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the conditions in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.' (Italics ours.)
Of course the title to the property given to the minor children will continue in them after they reach their majority. Adult children have no inchoate rights in the property of living parents. Nor can it be said when that time comes that the property is used by the minor children of the parties. But we are not called upon the decide that this was an error of law, however plausible appellant's contentions may be, for two reasons:
First. Rem.Rev.Stat. § 988 (Sup.), provides in part as follows 'If * * * the court determines that either party, or both, is entitled to a divorce an interlocutory order must be entered accordingly, * * *; which order shall also make all necessary provisions as to alimony, costs,...
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In re Weiser
...modify even its own decree in the absence of conditions justifying the reopening of the judgment. RCW 26.09.170(1) ; Kern v. Kern , 28 Wash.2d 617, 619, 183 P.2d 811 (1947). An ambiguous decree may be clarified, but not modified. RCW 26.09.170(1) ; In re Marriage of Greenlee , 65 Wash. App.......
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In re Parentage of J.T.G.-S.
...of remedying legal errors." Burlingame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722 P.2d 67 (1986); see also Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947). The error- and abuse-correcting function of appeal is not incorporated into a motion to vacate: It may have been, an......
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In The Matter Of The Parentage Of: J.T.G.-s.
...remedying legal errors." Burlingame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722 P.2d 67 (1986); see also Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947). The error-and abuse-correcting function of appeal is not incorporated into a motion to vacate: It may have been, and pr......
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High v. High
...cases where the time for an appeal has elapsed. State ex rel. Gaupseth v. Superior Court, 24 Wash.2d 371, 164 P.2d 890; Kern v. Kern, 28 Wash.2d 617, 183 P.2d 811. Without detailing at length the facts of Cassutt v. Cassutt, 126 Wash. 17, 217 P. 35, Brown v. Brown, 192 Wash. 333, 73 P.2d 79......
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Chapter §64.03 Vacation of Decrees (Cr 60)
...that is erroneous as a matter of law, Pamelin Indus., Inc. v. Sheen-U.S.A., Inc., 95 Wn.2d 398, 403, 22 P.2d 1270 (1981); Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947). See also the discussion set forth in § 64.03[2][b][ii], above, regarding void judgments, and errors of law that do ......
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Table of Cases
...S. Ct. 1045, 16 L. Ed. 2d 84, 11 Ohio Misc. 53, 40 Ohio Op. 2d 270 (1966) . . . . . . . . . . . . . . . . . . . 77.02; 77.05 Kern v. Kern, 28 Wn.2d 617, 183 P.2d 811 (1947). . . . . . . . . . . . . . .64.03[5]; 69.03[1][c] Kerr v. Cochran, 65 Wn.2d 211, 396 P.2d 642 (1964) . . . . . . . . .......
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Chapter §69.03 Procedures
...a court does not have the ability to modify a decree in the absence of conditions justifying reopening of the judgment. Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947). A decree is modified when rights given to one party are extended or reduced beyond the scope originally intended. Riv......