MacKay v. MacKay

• Citation: 347 P.2d 1062,55 Wn.2d 344
• Decision Date: 31 December 1959
• Docket Number: No. 35079,35079
• Court: Washington Supreme Court
• Parties: Leola MacKAY, Respondent, v. Hunter John MacKAY, Appellant.

Page 344

55 Wn.2d 344

347 P.2d 1062

Leola MacKAY, Respondent, v. Hunter John MacKAY, Appellant.

No. 35079.

Supreme Court of Washington, Department 1.

Dec. 31, 1959.

Rehearing Denied Feb. 25, 1960.

John J. Kennett, Seattle, for appellant.

Wettrick, Flood, O'Brien, Toulouse & Lirhus, Ralph C. Hove, George J. Toulouse, Jr., Seattle, for rescondent.

OTT, Judge.

May 12, 1954, Leola MacKay and Hunter John MacKay were divorced. In the decree, Leola MacKay was awarded, inter alia, the custody of their four minor children, monthly support of one hundred twenty-five dollars for each child during his minority, and alimony at a graduated rate, starting at two hundred dollars a month, with a fifty-dollar monthly reduction as each child reaches majority or is emancipated.

October 3, 1957, Hunter John MacKay filed a petition to modify the decree of divorce, alleging.

'That since the entry of said divorce decree, a material change in the financial status of both plaintiff and defendant has occurred which requires that the decree be modified with respect to monthly payments for alimony and child support money.'

The cause was heard commencing December 16, 1957, and terminating December 20, 1957, at which time the court took the matter under advisement.

February 18, 1958, the court ordered a supplemental hearing and notified counsel of record for the parties as follows:

'The court hereby orders a supplemental hearing to receive additional evidence bearing upon the petitioner's current annual rate of earning. Specifically the court directs that a copy of the defendant's Federal Income Tax return for the calendar year 1957, be furnished to the court and copies of petitioner's returns which will become due to the Washington State Tax Commission for the two bi-monthly periods of January and February, 1958, and March and April, 1958, in connection with the receipt of petitioner's professional income.

'A tentative date for this additional hearing is set for May 16, 1958, at the hour of 1:30 p. m. In the event that a subsequent date will better suit the convenience of either counsel, arrangements for such later date on another Friday afternoon may be made with the bailiff for department 12.'

May 6, 1958, the court wrote to counsel of record as follows:

'Please refer to the court's letter of February 18, 1958 ordering a supplemental hearing. In view of the fact that no alternate dates have been applied for by either counsel of record, the supplemental hearing will be at the time stated therein, that is, May 16, 1958 at 1:30 P. M.

'In addition to the production of copies of petitioner's federal income tax returns and his bi-monthly business tax returns due the State of Washington, the court will consider any other evidence bearing upon either party's financial condition relative to the petition now before the court wherein the defendant seeks to modify the divorce decree.

'Also the court desires proof as to status of accounts between the parties as they will exist on May 16, 1958.'

Subsequently, the court was advised that the parties were attempting to settle their differences, but that it was contemplated the time required to determine whether an agreement could be reached would extend beyond May 16th, the date set for the supplemental hearing upon the petition to modify. June 20, 1958, the trial judge caused the following docket entry to be made:

'460443 Leola MacKay vs. Hunter John MacKay.

'ENT'D. Matter continued subject to call.'

September 16, 1958, the court again wrote the attorneys as follows:

'Certain bookkeeping records belonging to the defendant were left with the court by defendant's former counsel. They have been and now are in the Judge's chambers. It would be appreciated if defendant's present attorney would make arrangements to have them removed. They presently serve no purpose and are an inconvenience.

'The court is awaiting response to its previous request for additional evidence relating to rate of annual income of the defendant.'

October 17, 1958, without any further proceedings, the court filed its memorandum opinion, based upon the evidence adduced at the original hearing on the petition to modify, and concluded:

'* * * If the defendant's accounting records of the monthly periods approaching trial were indicative of a real downward trend in annual income, there would have been other evidence to substantiate it. The court has requested that additional evidence be brought in bearing upon this subject. Since the defendant has failed to produce such supporting evidence, the court assumes that it is not available.

'Therefore, the plaintiff is entitled to a decree dismissing defendant's petition.'

The prevailing party prepared proposed findings of fact, conclusions of law, and judgment based upon the court's memorandum opinion, served them upon counsel of record, and noted them for presentation November 7, 1958.

November 7, 1958, plaintiff appeared by counsel. The defendant appeared in person without counsel. The defendant, orally and in writing, requested the court to grant a continuance, prior to the entry of findings of fact, conclusions of law, and judgment, for the purpose of his furnishing the requested documentary evidence and further proof relating to his financial status. The defendant stated that he was never notified that his last counsel of...