Loomis v. Loomis

• Decision Date: 22 September 1955
• Docket Number: No. 33113,33113
• Citation: 47 Wn.2d 468,288 P.2d 235
• Court: Washington Supreme Court
• Parties: Arthur R. LOOMIS, Appellant, v. Dolly A. LOOMIS, Respondent. . En Banc

Page 468

47 Wn.2d 468

288 P.2d 235

Arthur R. LOOMIS, Appellant, v. Dolly A. LOOMIS, Respondent.

No. 33113.

Supreme Court of Washington.

En Banc.

Sept. 22, 1955.

Hall, Cole & Lawrence, Stanley F. Atwood, Seattle, for appellant.

Hennings & Shinn, Seattle, for respondent.

Oliver J. Neibel, Jr., Mountlake Terrace, Luvern V. Rieke, Seattle, amici curiae.

WEAVER, Justice.

Do the courts of this state have the power, under existing statutes, Laws of 1949, chapter 215, § 11, RCW 26.08.110, to grant alimony for the support of a spouse in a case of absolute divorce when there are no minor or dependent children? This is a question of first impression in this court. See Alimony in Washington: A Note to the Legislature, 26 Wash.L.Rev. 135 (1951).

The predecessor of this court recognized that granting a divorce was a rightful subject of legislation by the territorial legislature, under the Organic Act of Oregon, in 1852. Maynard v. Valentine, 1880, 2 Wash.T. 3, 3 P. 195; Maynard v. Hill, 1884, 2 Wash.T. 321, 5 P. 717, affirmed 1887, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654. The Organic Act of the Territory of Washington (1853) did not change the rule. Laws iof 1854, p. 39, § 12; Rem.Rev.Stat. Vol. I, p. 322, § 12.

Although the first Washington territorial legislature provided that 'divorces may be granted by the district court', Laws of 1854, p. 405, it was not until the adoption of the state constitution, in 1889, that this power was taken from the legislature, art. II, § 24, and vested exclusively in the courts, art. IV, § 6.

Since the power to grant a divorce rests solely upon constitutional and statutory authority, it follows that the power to grant alimony rests upon the same basis.

The 1854 'Act Regulating Divorces', Laws of 1854, p. 405, does not use the word 'alimony.' The statute does, however, provide that the court, pending a divorce,

'* * * may make * * * such orders for the disposition of * * * property and children of the parties as may be deemed right and proper * * *'

and, upon granting a decree of divorce,

'* * * shall also make such disposition of the property of the parties as shall appear just and equitable, having regard * * * to the condition in which they will be left by such divorce * * *'

The territorial supreme court first used the word 'alimony' in Madison v. Madison, 1859, 1 Wash.T. 60. The trial court entered a decree of divorce, 'and alimony and certain expenses were allowed to the defendant [wife] out of the estate of the plaintiff.' Of this, the supreme court said 'The Court, in this instance, instead of granting a sum absolutely to the wife, has decreed that a certain sum shall be put into the hands of a trustee, the interest to be paid to the defendant, quarterly, during her natural life, and at her death the principal to revert to the husband.

'This we think the Court had power to do under the section of the act referred to [which act is quoted supra].'

Here, we have periodic payments, out of future earnings of property of the husband, made to the wife for her support. This the territorial supreme court designates as alimony. It finds the power to grant alimony in its statutory authority to make disposition of the property of the divorced parties.

The seventh territorial legislature re-enacted the 1854 'Act Regulating Divorces' with some changes and additions not pertinent to the problem we are considering. The new act was passed January 23, 1860. We cannot escape the conclusion that the legislature was cognizant of the supreme court's decision in the Madison case, supra, for the re-enactment was entitled 'An act to regulate suits for divorce and alimony.' Laws of 1859, p. 318. (Italics ours.)

Subsequent amendments of the same act, as well as the Code of 1881, designated the subject matter as pertaining to 'suits for divorce and alimony.' Laws of 1860, p. 26; Laws of 1862, p. 413; Laws of 1863, p. 13; Code of 1881, §§ 2000-2013; see Thorndike v. Thorndike, 1861, 1 Wash.T. 175, 177.

Thus, we have judicial and, at least, implied legislative interpretation, that statutory authority of the court to make disposition of the property of divorced parties empowers the court to grant periodic payments of alimony to the wife.

From 1854 to 1921, the word 'alimony' did not appear in the divorce statutes, except in the title of certain acts. We have referred to some of them. However, every practicing lawyer knows that courts allowed alimony during this period, when the facts warranted it.

Prior to 1921, the statutes provided for a single decree of 'full and complete dissolution of the marriage.' In 1921, the legislature changed the procedure and required that '* * * an interlocutory order must be entered accordingly, declaring that the party in whose favor the court decides is entitled to a decree of divorce * * * which order shall also make all necessary provisions as to alimony * * *.' Laws of 1921, chapter 109, § 2, Rem.Rev.Stat. § 988. (Italics ours.)

It is apparent that this amendment merely authorized the court to make an allowance of alimony in the interlocutory order of divorce, under the new divorce procedure requiring an interlocutory order, and then, six months later, a final decree of divorce; for the words 'which order' can refer to nothing but the interlocutory order. Having established a system of divorce requiring two steps, it was necessary to define what could be ordered in each step. There was still left upon the statute books the exact language of the 1854 act, quoted supra, for the disposition of property. Rem.Rev.Stat. § 989.

In 1933, the act was amended to allow the court to modify divorce decrees as to 'alimony and the care, support and education of children'. Laws of 1933, chapter 112, § 1, Rem.Rev.Stat. (Sup.) § 988.

The interlocutory order and six-month-waiting period caused many unfortunate legal complications. The state bar association committee on divorce law recommended that 'there should be one decree only in divorce, that that should be a final decree.' The reports in no wise suggest that the right to grant alimony should be abolished. See 'Report on Proposed Changes in the Divorce Law of Washington,' 22 Wash.L.Rev. No. 4, p. 17; 'Report of Committee on Divorce Laws,' 23 Wash.L.Rev. 320.

In 1949, the legislature enacted the present divorce statute, under which it is urged that the courts do not hasve the statutory authority to award alimony in a divorce action. The pertinent portion of the statute reads as follows:

'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 shall 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 * * *.' Laws of 1949, chapter 215, § 11, RCW 26.08.110.

In the main, the language used in the present statute is carried forward from statutory provisions existing prior to 1949. The phrase 'disposition of the property of the parties' has appeared since the territorial divorce act of 1854. The right to modify such 'order [decree] as to alimony' springs from the 1933 amendment. Laws of 1933, chapter 112, § 1, Rem.Rev.Stat. (Sup.) § 988.

If the trial court's decree awarding alimony in the instant case is to be sustained, it must be done on the ground (1) that the authority to make a disposition of the property of the parties includes the authority to award alimony; or (2) that the authority to modify 'such decree as to alimony' necessary implies the power to award alimony in the first instance.

Having sketched the background of the present statute, we turn now to certain opinions of this court. We eliminate from our consideration the many cases in which alimony has been recognized, see Patrick v. Patrick, 1953, 43 Wash.2d 139, 260 P.2d 878; Valaer v. Valaer, 1954, 45 Wash.2d 565, 570, 277 P.2d 326, and confine ourselves to those cases in which the statutory right to award alimony has been questioned and discussed.

In Valaer v. Valaer, supra, this court said:

'There are many definitions of 'alimony' to be found in the decisions of the courts, and while they differ more or less as to details they all agree that primarily alimony is an allowance in a divorce action to the wife from the husband for her support, in lieu of the legal obligation of the husband to support her. 2 Nelson, Divorce and Annulment (2d ed.) 5, § 14.02.' 45 Wash.2d at page 570, 277 P.2d at page 329.

In King v. Miller, 1894, 10 Wash. 274, 38 P. 1020, the former wife sought to foreclose a lien on her husband's property for alimony awarded her, which was to be paid 'so long as plaintiff remained unmarried after the children attained their majority.' The former husband argued that the court had no power to compel him to pay monthly allowances for his former wife's support after a decree of absolute divorce. There having been no appeal, this court held that the allowance of the award was res judicata. The court's further statement that 'it was a good allowance as to the children, and could, at least, be sustained as to them,' is dictum.

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