Koon v. Koon

• Decision Date: 11 July 1957
• Docket Number: No. 33678,33678
• Court: Washington Supreme Court
• Parties: Hilda H. KOON, Respondent and Cross-Appellant, v. Howard KOON, Appellant.

Page 577

50 Wn.2d 577

313 P.2d 369

Hilda H. KOON, Respondent and Cross-Appellant, v. Howard KOON, Appellant.

No. 33678.

Supreme Court of Washington, En Banc.

July 11, 1957.

Hay & Hamlin, Seattle, for appellant.

Venables, Ballinger & Clark, Seattle, for respondent.

FOSTER, Justice.

There is here for review, on both appeal and cross-appeal, the father's liability for accumulated monthly installments of support money for minor children awarded by divorce decree to respondent wife for a period when the children lived with and were wholly supported by him. There is also presented the mother's right to collect monthly support allowances for a son in military service. Under the decree, which requires appellant to pay respondent for the support of their two boys 'after completion of the school term in June 1948, the sum of $83.34 each, per month,' the order appealed from requires appellant father to pay respondent all past-due accumulations except those matured more than six years prior to the institution of this ancillary divorce proceeding.

The modified decree contemplates that the boys were to have a very wide choice in deciding whether to live with their father or mother. Certain it is they changed homes at will, but, at all events, the respondent mother always maintained a suitable home for their accommodation. The decree does not relieve the appellant of his liability under such circumstances.

Three periods are involved: (1) School years in which one or both boys attended schools selected by the oldest son of the parties, pursuant to the arbitration clause in the decree, during which period they were entirely supported by the appellant father; (2) summer vacations when either or both of the boys lived with their father and were entirely supported by him; and finally, (3) the period of military service.

Respondent contends that under Bradley v. Fowler, 30 Wash.2d 609, 192 P.2d 969, 2 A.L.R.2d 822, the trial court's decision is correct, while appellant, on the other hand, contends that Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759; State ex rel. Meins v. Superior Court, 159 Wash. 277, 292 P. 1011; and Gainsburg v. Garbarsky, 157 Wash. 537, 289 P. 1000, compel reversal; but we do not regard those decisions in irreconcilable conflict. Although there are expressions which seem on their face to be contradictory, nevertheless, the court was dealing with different circumstances. In following Bradley v. Fowler, supra, the Springfield (Missouri) court of appeals in Steckler v. Steckler, 293 S.W.2d 129, 134 said of State ex rel. Meins v. Superior Court, supra, and others of similar import, such cases 'can be grouped under one umbrella, namely, the express or implied consent of the mother, who occupies the position of parent-trustee, to the payment of support money in manner other than directly to her.' We find that analysis most accurate. ¹

The door is always open for a father who is required to make periodic payments for the support of minor children, to relieve himself of that liability by a petition to modify the decree in futuro, but he cannot remain silent while the installments accrue and then claim credit for his voluntary acts. ²

A divergence of opinion exists in the courts of other states, but the settled jurisprudence of Washington is that accrued installments of support money are vested and may not be retrospectively modified. Sanges v. Sanges, 44 Wash.2d 35, 38, 265 P.2d 278; McGrath v. Davis, 39 Wash.2d 487, 236 P.2d 765; Pishue v. Pishue, 32 Wash.2d 750, 753, 203 P.2d 1070; Kinne v. Kinne, 137 Wash. 284, 242 P. 388; Beers v. Beers, 74 Wash. 458, 133 P. 605.

While it is to the father's everlasting credit that he cared for the boys in his own home, nevertheless, in view of the mandatory requirements of the decree respecting the payment of the monthly support installments to the mother, he was a volunteer and is not thereby relieved from the obligations of the decree. Finkbeiner v. Finkbeiner, Ark., 288 S.W.2d 586; McCourtney v. McCourtney, 205 Ark. 111, 168 S.W.2d 200; Nelson v. Nelson, 146 Ark. 362, 225 S.W. 619; Wills v. Baker, 240 Mo.App. 705, 214 S.W.2d 748; Assman v. Assman, 192 Mo.App. 678, 179 S.W. 957. The observation of the Springfield court of appeals of Missouri in Steckler v. Steckler, supra, set out in the margin, is quite explanatory. ³

The court found upon undisputed evidence that the parties' son, George Philip Koon, continuously served in the army from November, 1953, to November, 1955, but nevertheless, ordered appellant to pay to respondent the monthly support money until George's twenty-first birthday in September, 1955.

Appellant contends the son was emancipated by such military service and that his liability for support terminated.

Respondent, on the other hand, contends appellant must make the support payments during the period of military service because the decree does not relieve him thereof during such period. ⁴

It is presently unnecessary for us to decide that question for the record before us discloses the army duty did not change the fact of dependency. Respondent's uncontradicted affidavit shows that during the entire period George lived in her home and was supported by her. George was assigned to duty in Seattle at which time respondent, her husband and the younger boy lived in an apartment too small to accommodate George, who, nevertheless, wanted to live with his mother, so she, at additional expense, rented a home for that purpose in which George resided throughout his military service. Such facts negative emancipation by military service.

Error is assigned on the cross-appeal because of the trial court's refusal to order payments for July and August, 1949. Each installment became a judgment as it matured but payment of installments cannot be enforced six years after accrual. Mosher v. Mosher, 25 Wash.2d 778, 172 P.2d 259; St. Germain v. St. Germain, 22 Wash.2d 744, 157 P.2d 981.

Respondent assigns error upon the refusal of the trial court to require support payments for two summer months of 1952, and asserts such was an oversight; but it does not appear that the trial court's attention was directed to the matter, nor does cross-appellant set out her proposed findings upon this subject as required by Rule on Appeal 42(1)(f), 34A Wash.2d 45, as amended effective January 2, 1953, and Rule on April 43, 34A Wash.2d 47, as amended effective January 2, 1953. It is now impossible to determine whether such omission was a mistake but that question cannot be raised for thr first time on appeal. Bloomquist v. Buffelen Manufacturing Co., 47 Wash.2d 828, 831, ⁵ 289 P.2d 1041, 1043; Brewster Cooperative Growers v. Brewster Orchards Corp., 21 Wash.2d 288, 150 P.2d 847.

Cross-appellant's assignment of error respecting the court's refusal to allow her attorney's fees is without merit. No question arises respecting the power of the court to award a wife a reasonable attorney's fee at any stage of a divorce action or in a proceeding ancillary thereto, ⁶ but it may not be amiss to recall that the primary factors are the need of the wife therefor and the financial ability of the husband to respond. ⁷ A wife is not entitled to free litigation. ⁸ If, however, a wife is without funds, it is an abuse of discretion to deny. ⁹ Conversely, if the wife has money of her own, it is error to award attorney's fees. ¹⁰

The complete answer to this assignment is that there is no showing of need. For ought that appears in the record, the cross-appellant may be very rich, or very poor, but this is not a guessing contest. There is nothing to review.

The order appealed from is affirmed on both appeals.

HILL, C. J., and MALLERY, SCHWELLENBACH, DONWORTH, WEAVER, ROSELLINI and OTT, JJ., concur.

FINLEY, Justice (concurring in the result).

There is considerable conflict in the reasoning employed in the following two groups of cases: (a) Bradley v. Fowler, 30 Wash.2d 609, 192 P.2d 969, 2 A.L.R.2d 822; State ex rel. Kibbe v. Rummell, 36 Wash.2d 244, 217 P.2d 603; (b) Gainsburg v. Garbarsky, 157 Wash. 537, 289 P. 1000; State ex rel. Meins v. Superior Court, 159 Wash. 277, 292 P. 1011; Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759.

The conflict may result from the significantly different fact patterns involved. This may be a sufficient explanation of the conflict. On the other hand, it does exist, and it is not resolved by closing our eyes and stating that it does not.

I believe that confusion as to the reasoning of the two lines of authoritative cases is increased by the decision in the instant case, because it over-emphasizes the reasoning in Bradley v. Fowler, supra, which stresses inflexibility and construes child-support provisions literally and strictly, irrespective of circumstances. In...