Maple v. Maple

• Decision Date: 26 February 1948
• Docket Number: 30299.
• Citation: Maple v. Maple, 189 P.2d 976, 29 Wn.2d 858 (Wash. 1948)
• Court: Washington Supreme Court
• Parties: MAPLE v. MAPLE.

189 P.2d 976

29 Wn.2d 858

MAPLE v. MAPLE.

No. 30299.

Supreme Court of Washington

February 26, 1948

Department 2

Action by J. D. Maple against Beulah E. Maple wherein defendant filed a cross-complaint and each sought a divorce from the other. From an interlocutory order, defendant appeals.

Order affirmed.

Appeal from Superior Court, Benton County; Hon. Timothy A. Paul judge.

Horrigan & Leavy, of Pasco, for appellant.

Moulton & Powell and Thomas B. Gess, all of Kennewick, for respondent.

STEINERT Justice.

This was an action in which the plaintiff by his complaint, and the defendant by her cross-complaint, sought a divorce, one from the other on the ground of cruel treatment. After a hearing, the court made findings of fact, upon which it entered an interlocutory order adjudging the plaintiff to be entitled to a divorce, granting to the plaintiff the custody of the two minor children of the parties, and declaring void a certain 'interlocutory judgment of divorce' previously obtained by the defendant in an action instituted by her against this plaintiff in the state of California. From the interlocutory order made and entered by the trial court in the present action, the defendant appealed.

The defendant appellant assigns as error: (1) the refusal of the trial court to recognize as valid the interlocutory judgment of divorce which the California court pronounced and entered (2) the order granting a divorce to the respondent, and the refusal to grant the same relief to the appellant; and (3) the order awarding to the respondent, and refusing to award to the appellant, the custody of the two minor children. We shall consider these assignments in their numerical order.

The trial court held that the interlocutory judgment of divorce previously entered by the California court was void, on the ground and for the reason that, at the time of commencing her action in that state, appellant had not established the residence requirements necessary to give that court jurisdiction of the cause. The facts on this phase of the case are as follows:

On December 15, 1931, respondent, Jay D. Maple, and appellant, Beulah E. Maple, then residents of California, were united in marriage in Kingman, Arizona. During the first ten years of their married life, they lived in Wilmar and other towns in California, where respondent was employed by Metropolitan Water District. In the fall of 1941, respondent severed his connection with that organization and, accompanied by appellant, moved to Henderson, Nevada, where for about twenty months he was engaged in defense work. During their stay in Nevada, the greater portion of their household furniture was stored in a warehouse in Long Beach, California.

In July, 1943, the parties came to the state of Washington, where respondent had been offered employment in construction work upon what is termed herein the Hanford Engineer Project. In November of that year, they rented a funrnished house in Richland, Benton county, Washington, and lived therein continuously until about the middle of October, 1946. The greater portion of their furniture was left in storage in Long Beach. Although at various times respondent expressed the desire to bring the furniture, or portions of it, to Washington, this was never done, because of appellant's insistence that she could not use it is the furnished house which they were renting.

There is a dispute in the evidence as to whether the parties at any time intended to establish a permanent residence in this state. Appellant testified that her husband promised her that if she would accompany him to Washington they would remain ln this state just one year and then return to California where they would buy a home; and that it was never the intention of either of them to give up their legal residence in California. Respondent testified that when they first came to Washington they did not know how long the work would last and, for that reason, they did not at first have in mind establishing a permanent residence in this state; that later, however, when the construction work of the project was completed, respondent was transferred to operational work and, it then becoming apparent that he would have steady employment indefinitely, both he and the appellant thereafter considered themselves permanent residents of the state of Washington, with no intention of returning to California.

In 1944, the parties registered for voting purposes in Richland, giving their address in that city, and thereafter voted in the general election of that year. They also from that time on regularly took part in various community activities and acquired a wide social acquaintance.

At the time of coming to this state in 1943, they had one child, approximately two years of age; about a year later, while they were living in Richland, another child was born to them. Both of the children are girls.

Upon the evidence adduced, and as thus far outlined, the trial court found that the parties intended to, and did, establish a residence in the state of Washington.

As will hereinafter more particularly appear, marital difficulties developed between respondent and appellant, reaching a climax in the latter part of 1946, three years after their arrival in the state of Washington. On October 13th of that year, while respondent was on a hunting trip, appellant took the two children and, without respondent's knowledge or consent, left for California. She also took with her a number of government bonds belonging to the marital community, the cash value of which amounted to $3,725, and the proceeds of sale of certain household equipment amounting to $90; she left an equal amount of similar bonds for retention by respondent.

On November 4, 1946, approximately three weeks after her arrival in California, she filed in Los Angeles county an action for divorce from the respondent. In her complaint she alleged that for more than one year last past she had been a resident of the state of California, and for more than three months immediately preceding the commencement of the action she had been a continuous resident of Los Angeles county. It is conceded that, under the laws of California, residence in that state for one year preceding the commencement of an action for divorce is required.

Upon his return from the hunting trip above mentioned, respondent, finding that appellant had left him, made continuous efforts to locate her and the children. It was not until three weeks later that he learned that she was staying with friends in Long Beach, California. He thereupon made a trip to that city and, after finding appellant, endeavored to persuead her to return with him to Richland. She refused, saying that she wanted her freedom. After many fruitless discussions between the parties, respondent, at the insistence of appellant, went with her to the office of her attorney and there, on November 14, 1946, they both signed a 'property settlement agreement,' as drawn by the attorney.

The agreement provided that appellant should have the care and custody of the two children and that respondent should pay twenty dollars a week for their support while the children were with the mother; but that respondent could take the children to the state of Washington and keep them until such time as appellant was able to establish a suitable home for them in California, at which time respondent was to return them to her, upon her request.

The agreement further provided that appellant was to have all of the furniture and household equimpent belonging to the parties, together with the cash or bonds then in her possession, and that she should use the furniture and equipment for the purpose of making a suitable home for the children, but that she should not sell or encumber the property without respondent's consent.

During the conference at the attorney's office, respondent questioned the sufficiency of appellant's residence in California to support an action for divorce. We quote his testimony on that matter:

'Q. What was the conversation with the attorney about residence? A. I asked him how my wife could file a suit down there three weeks after her arrival in California. He said 'She has furniture in storage here in Long Beach and that constitutes a residence in this state.' I said 'I don't believe it does, but you know she had only been down here three weeks when you filed that action.''

At the time of signing the property settlement agreement, respondent was served with a copy of the summons and complaint in the action instituted by appellant. On the following morning, November 15, 1946, respondent left California and returned to Richland, Washington, bringing the two children with him. On December 23, 1946, appellant obtained an 'interlocutory judgment of divorce,' by default, in the California court.

In the meantime, respondent, having returned to Washington, was informed of certain acts of misconduct of the appellant while living with him in Richland, of which acts respondent had previously been ignorant. After an investigation of the reported acts, he instituted the present action for divorce. The cause came on for hearing, at which both parties were present and testified. At the conclusion of the trial, the court entered the order from which this appeal was taken.

Appellant contends that the facts with respect to residence having been fully submitted to the California court, which is a court of competent jurisdiction, and respondent having failed to contest that action, and the California court having made its findings with respect to residence in that state, and the question being one of law deducible from the facts, and the California court having drawn its conclusions and entered its judgment thereon,...