Larson v. Larson

• Decision Date: 02 April 1919
• Docket Number: 15126.
• Citation: 106 Wash. 305,179 P. 841
• Parties: LARSON v. LARSON.
• Court: Washington Supreme Court

179 P. 841

106 Wash. 305

LARSON v. LARSON.

No. 15126.

Supreme Court of Washington

April 2, 1919

Department 1.

Appeal from Superior Court, Clarke County; Kenneth Mackintosh Judge.

Action by George E. Larson against Sarah Larson for divorce, with cross-bill by defendant for separate maintenance. From a decree for defendant, plaintiff appeals. Affirmed.

Walter G. Hayes, of Portland, Or., and Miller & Wilkinson, of Vancouver, for appellant.

Willametta McElroy and Geo. S. Shepherd, both of Portland, Or., for respondent.

CHADWICK C.J.

Appellant brought action for divorce. Respondent answered denying generally, and setting up by affirmative answer that appellant had been guilty of cruel and inhuman conduct toward respondent, nonsupport, and that appellant was an able-bodied man capable of earning $4.50 per day. She prayed that a divorce be denied and that she be allowed her attorney's fees, a sum in gross, and $40 a month as permanent support. After a trial, the court decreed that the appellant's cause of action should be dismissed and that he pay attorney's fees and $35 cach and every month as permanent support.

Appellant is standing upon the two propositions that the evidence is not sufficient to support the decree and that the court was without jurisdiction to enter a money judgment for maintenance.

We have read the record and are quite satisfied that the court's decree is sustained by sufficient competent evidence.

It is said that, whereas the court may, pending an action for divorce, make such interlocutory orders as may be necessary to enable a wife to properly prepare for trial (Rem. Code, § 988), and may if a divorce be granted make such disposition of the property as may be just and equitable, and may grant alimony (Rem. Code, § 989), there is no statute warranting a decree for maintenance if a divorce be denied.

Whether in good reason or in bad reason (2 Bishop, Marriage, Divorce and Separation, §§ 1393--1400), this court has held that a suit for separate maintenance may be prosecuted independently of the divorce statute, and that such an allowance may be made under the general equity powers of the court. Kimble v. Kimble, 17 Wash. 75, 49 P. 216; State ex rel Young v. Superior Court, 85 Wash. 73, 147 P. 436; Herrett v. Herrett, 60 Wash. 608, 111 P. 867.

The right of action being established, we have no hesitation in holding that a cause of action for separate maintenance may be set up in answer to a suit for divorce, and as an incident to a prayer that the divorce be denied the court may enter a judgment upon the affirmative issue tendered by the answer. Rem. Code, § 273. And this whether the plaintiff's cause of action be regarded as arising in statutory confirmation of the eclesiastical law, or as a purely equitable action under our system of jurisprudence as some courts have held. Good pleading may demand that the cause of action for separate maintenance be separately stated, but with that question we are not now concerned. No motion was directed to the answer.

In Huff v. Huff, 73 W.Va. 330, 80 S.E. 846, 51 L. R. A. (N. S.) 282, the husband brought suit for divorce. The wife answered, putting in issue all the material allegations of the complaint, followed by matter upon which a prayer for an allowance for 'alimony by way of affirmative relief' was predicated. The court made no question of its right to grant the relief prayed for.

Wadsworth v. Wadsworth, 81 Cal. 182, 22 P. 648, 15 Am. St. Rep. 38, was an action for the annulment of a marriage. Our divorce statutes cover annulment, as well as divorce, and the reasoning upon the one action would apply equally to the other. The question was whether the defendant could maintain a cross-suit for divorce and have affirmative relief. The opinion shows much research of the authorities. Among other cases relied on was Dodd v. Dodd, 14 Or. 338, 13 P. 509, where the court found sanction for the practice under the statute allowing the plea of a counterclaim. The Oregon statute is in legal effect the same as subdivision 1, § 265, of Remington's Code. Chief Justice Lord is quoted as follows:

'To compel the defendant to bring a new suit and go over the same evidence, which could be as well given in the existing action, would be vexatious, and, in fact, unnecessary. On the other hand, to allow such an answer, the rights of the parties could be adjusted in one suit, and much inconvenience and delay avoided. It is always desirable that there be as speedy a

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