Lambert v. Lambert

• Decision Date: 24 June 1965
• Docket Number: No. 37148,37148
• Citation: 403 P.2d 664,66 Wn.2d 503
• Court: Washington Supreme Court
• Parties: Clary LAMBERT, Appellant, v. Frank LAMBERT, Jr., Respondent.

Page 503

66 Wn.2d 503

403 P.2d 664

Clary LAMBERT, Appellant, v. Frank LAMBERT, Jr., Respondent.

No. 37148.

Supreme Court of Washington, Department 2.

June 24, 1965.

Shirley N. Holland, Bellevue, for appellant.

Newman H. Clark, Seattle, for respondent.

HAMILTON, Judge.

This is an appeal from an order modifying the alimony and support provisions of an outstanding divorce decree.

The plaintiff-appellant, Clary Lambert, brought two daughters by a previous marriage into her marriage to defendant-respondent, Frank Lambert, Jr., in December, 1952. Two sons were subsequently born to the Lambert union. Since the appeal in this proceeding, one of the sons has died. During the marriage, respondent practiced optometry in Kirkland, Washington, with an income reaching approximately $13,000 per year. His personal life, however, became involved and, in February, 1962, Mrs. Lambert commenced divorce proceedings alleging as grounds, among other things, misconduct on the part of Mr. Lambert with her two daughters. The action, which was contested, culminated in the entry, on November 7, 1962, of extensive findings of fact, together with conclusions of law, and a final decree of divorce, from which neither party appealed. Respondent's transgressions also resulted in criminal proceedings and a deferred sentence, one of the conditions of which was that he comply with the provisions of the divorce decree.

The essential provisions of the findings, conclusions, and decree in the divorce action, insofar as they relate to this proceeding are: (1) Mrs. Lambert was awarded a decree of divorce, essentially upon the grounds alleged; (2) she was given custody of the two boys, then ages 8 and 4, with specified and limited visitation rights accorded to Mr. Lambert; (3) he was ordered to pay the sum of $135 per month per child for the boys' support, and $200 per month as alimony for a period of 5 years, $150 per month for the succeeding 3 years, and $100 per month for 2 years thereafter, all subject to further order of the court; and (4) the property of the parties, with the exception of a minor stock account which was not brought to the attention of the court, was divided.

During pendency of the divorce action and because of the notoriety surrounding the cause thereof, respondent's reputation and business diminished in Kirkland. At the time of trial, it was deemed advisable that he forego the business and accept proffered employment elsewhere, and, at or about the time of the entry of the divorce decree, respondent left Kirkland and began working for another optometrist in nearby Bellevue for a salary of $700 per month. This employment lasted one month, his employer terminating the relationship because respondent did not discontinue his optometric practice in Kirkland, and on his free time was in effect competing with his employer. But for this fact and respondent's adamant desire to remain in the area, his employer indicated his employment could have continued and probably prospered.

Respondent returned to Kirkland and undertook to revive his former practice, incurring in the process expenses of approximately $750 per month. On December 18, 1962, approximately a month and a half after entry of the decree, he moved for a modification in response to a show cause order issued at the instance of appellant in her attempt to collect delinquent support and alimony payments. His motion was dismissed upon the ground that it was not properly before the court and thereafter, on January 16 1963, he filed and served a petition for modification seeking a reduction of the specified payments, alleging, among other things, that

(A)t the time of trial of the above cause, which commenced on October 3, 1962 and was completed October 8, 1962, petitioner expected and so testified that he had been employed and would receive $700 a month in his profession. That petitioner was employed during November and received $600 therefor, and otherwise has not been employed. The petitioner also was awarded as his separate property his optometry business located in Kirkland, Washington, together with all fixtures and property with reference thereto. That upon losing his employment in November, 1962, petitioner has spent his full working time trying to regain his optometry business with limited success, as is detailed in his affidavit of December 15, 1962 on file herein, which is made a part herein by this reference. * * *

Respondent's decision to return to his Kirkland practice occasioned further delinquencies in his support obligations and renewed collection efforts upon the part of appellant. Several writs of garnishment were issued, including one upon the minor stock account which was not distributed in the divorce action.

Respondent's modification petition came on for hearing on May 3, 1963, it having been continued pending disposition of the criminal proceedings heretofore referred to. On May 7, 1963, the trial judge filed a written memorandum decision stating:

The court is of the opinion that the defendant (respondent) would be better off to seek to re-establish himself in another community. His judgment as to his business cannot be interfered with. The court must keep in mind that the defendant could, if he wished, abandon his present business and earn a minimum of $600.00 per month elsewhere. It is quite apparent in fixing the amount of payments the court, at the time of the decree, did not take into consideration the fact that defendant's business would be ruined by reason of his misconduct.

Thereafter the court entered an order modifying the decree of divorce in the following particulars:

(a) Alimony was reduced by $50 per month and child support payments to $75 per child;

(b) The reductions of said payments were made retroactive to January 16, 1963, the date of respondent's modification petition;

(c) Respondent's obligation to make up delinquent alimony and support payments was deferred until December 1, 1963;

(d) Outstanding writs of garnishment were released and appellant was enjoined from issuing further attachments or garnishments against respondent's business property and automobile;

(e) Appellant was denied costs and attorney's fees.

The trial court did not enter findings of fact or conclusions of law; however, the order recites, Inter alia:

That defendant has had a change of circumstances in that he was employed only for a period of one month during November, 1962, and received a net sum of $630 therefor. * * *

On appeal, appellant first contends that the trial court erred in failing to enter findings of fact before entry of the order modifying the divorce decree. Rule of Pleading, Practice & Procedure 52.04W, RCW vol. O, provides:

The trial court shall make findings of fact in all equity cases, and in all law cases tried before the court without a jury.

A modification proceeding, although a continuation of the original action, is a separate proceeding, in that it rests upon new facts and presents new issues arising since the entry of the original decree. State ex rel. Mauerman v. Superior Court, 44 Wash.2d 828, 271 P.2d 435 (1954). We can conceive of no logical reason why Rule 52.04W, supra, should not apply to such a proceeding. Indeed, it would seem that compliance with the rule would aid and assist any further proceedings in the original action as well as facilitate any appellate processes that might become involved. Accordingly, the trial court should have required presentation and entry of findings of fact.

Appellant, however, did not timely move to vacate the order entered, as provided by Rule of Pleading, Practice & Procedure 52.08W, RCW vol. O. Since the recitals of the order of modification, when read in the light of the memorandum decision, reveal the basis upon which the trial court predicated its order, we find no prejudice and appellant points to none....