Marriage of Mahalingam, In re

• Decision Date: 31 August 1978
• Docket Number: No. 2168-III,2168-III
• Citation: 21 Wn.App. 228,584 P.2d 971
• Parties: In re the MARRIAGE OF R. MAHALINGAM, Appellant, and Rose-Marie Mahalingam, Respondent.
• Court: Washington Court of Appeals

Page 228

21 Wn.App. 228

584 P.2d 971

In re the MARRIAGE OF R. MAHALINGAM, Appellant,

and

Rose-Marie Mahalingam, Respondent.

No. 2168-III.

Court of Appeals of Washington, Division 3, Panel Three.

Aug. 31, 1978.

Rehearing Denied Sept. 28, 1978.

David W. Henault and John B. Hancock, Spokane, for appellant.

Pullman Legal Aid Society, Howard M. Neil, Pullman, for respondent.

MUNSON, Chief Judge.

Dr. R. Mahalingam, petitioner, appeals the child custody, support and attorney's fees provisions of a dissolution decree. We affirm.

The parties were married in 1967. In February of 1975, after a fairly tumultuous relationship, they entered into a separation agreement, which, among other things, gave petitioner custody of their only child. A default decree of legal separation was entered May 15, 1975. In December, the petitioner unsuccessfully moved ex parte to transform the legal separation decree into one of dissolution. The matter was continued by the court so that respondent could be notified of petitioner's motion. After receiving notice respondent cross-petitioned for dissolution and modification of the custody provisions of the separation agreement. The court vacated the custody provisions of the legal separation decree and dissolved the marriage.

The first issue is whether, after the passage of 6 months and upon the ex parte motion of petitioner, the superior court must change a legal separation decree into a dissolution decree. Petitioner contends RCW 26.09.150 mandates an affirmative answer. We disagree. Notice and the opportunity to be heard on matters which materially affect a litigant's rights are essential elements of due process that may not be disregarded. Cf., Esmieu v. Schrag, 15 Wash.App. 260, 264, 548 P.2d 581 (1976), Affirmed 88 Wash.2d 490, 497-98, 563 P.2d 203 (1977). The Rules of Civil Procedure which govern proceedings under RCW 26.09 provide that the moving party should give at least 5 days' notice of a hearing on a motion to the nonmoving party. CR 6(d). Although the time limit is not jurisdictional, (Loveless v. Yantis, 82 Wash.2d 754, 513 P.2d 1023 (1973)), notice to the respondent may not be dispensed with. Consequently, the court was justified in refusing to proceed without appropriate notice to the respondent.

The second issue is whether there was sufficient evidence to warrant vacation of the default decree of legal separation because of fraud. Based upon conflicting evidence, the court found that Dr. Mahalingam overreached, defrauded and overtly coerced respondent into signing a separation agreement; and that the court which had approved the separation agreement and its concomitant custody provisions was unaware of Dr. Mahalingam's conduct and as a result believed that the agreement was a mutual decision of the parties. Our review of the record satisfies us there is more than sufficient evidence to support such finding and we will not undertake a reevaluation of the credibility of the witnesses. State v. Hoffman, 64 Wash.2d 445, 450, 392 P.2d 237 (1964). As observed in State v. Reed, 56 Wash.2d 668, 678, 354 P.2d 935, 942 (1960), quoting from In Re Estate of Martinson, 29 Wash.2d 912, 190 P.2d 96 (1948) A trial judge is much more than a commissioner named to take and collect evidence in a case. He is a judicial officer provided for by our constitution, and the laws of this state. He has had years of experience as a trial lawyer and as a judge. . . . the credibility of the witnesses, and the force of their testimony, and the weight that should be attached to it, are all matters concerning which the trial judge is the best judge.

Assuming there was sufficient evidence to warrant the entry of the challenged finding, petitioner then contends, citing Sears v. Rusden, 39 Wash.2d 412, 235 P.2d 819 (1951), and Baskin v. Livers, 181 Wash. 370, 43 P.2d 42 (1935), that only extrinsic fraud, I. e., fraud in procuring the legal separation decree, is sufficient to warrant vacation of that decree. We disagree. The cases relied upon by petitioner were decided prior to the adoption of CR 60(b)(4), which permits vacation for "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party."

We find no merit in petitioner's contentions that: (a) respondent's cross-petition and answer did not comport with the requirements of CR 60(e)(1), and (b) the trial court erred in not setting a time and place for hearing and directing the petitioner to appear and show cause why the relief should not be granted as required by CR 60(e)(2). The cross-petition and answer and respondent's affidavit, save for the title of the pleadings, satisfied CR 60(e) (1). The course of action urged by petitioner, relying on CR 60(e)(2) would be nonsensical in light of the posture the case assumed upon respondent's filing of her cross-petition and answer.

The third issue, whether the trial court should have entered findings of fact as to the elements of RCW 26.09.260 when it granted the respondent custody and vacated the decree of legal separation, is disposed of by the fact that the efficacy of the legal separation decree was entirely nullified by vacation, I. e., the parties are left in the position as if no decree had been entered. Weber v. Biddle, 72 Wash.2d 22, 431 P.2d 705 (1967). Hence, the award of child custody in the dissolution decree was not a change of custody within the purview of RCW 26.09.260.

The fourth issue, whether the court considered the factors outlined in RCW 26.09.190 in awarding respondent custody, has no basis in the record. The wishes of the parents were amply demonstrated to the court by the positions urged at the two hearings on the dissolution petitions. Experts for both parties, as well as laymen, testified as to the child's interactions with his parents, his adjustment to his home, school and community, as well as his mental and physical health. There was no issue raised as to the mental or physical health of the parties. The fact that the trial court did not consult the child does not vitiate the award, particularly in light of the strained relationship between the parties and the age of the child. ¹

Petitioner contends the court should have considered the cultural dissimilarity between the respondent and child. There was substantial evidence that respondent, though a Caucasoid European, was extremely interested in preserving and fostering the child's appreciation for his Caucasoid-Indian heritage. The cultural factor was thus considered by the court.

The fifth issue, whether the trial court erred in requiring petitioner to pay $200 per month support, plus 20 percent of the net increase in salary he may receive from his employer or another employer should he change jobs, plus 10 percent of the net income ² he may receive from any other source ³, must also be determined adversely to the petitioner. Petitioner contends such an open-ended escalation award exclusively and impermissibly focuses on the circumstances of the paying parent while ignoring the complex factors relating to the needs of the child and the ability of the mother to pay support.

We are cognizant that there exists authority in support of petitioner's contention, ⁴ however, other jurisdictions have approved escalation clauses. ⁵ We believe in these times of economic uncertainty where rampant inflation ⁶ quickly diminishes the effective amount of support, the use of a reasonable escalation provision is not violative of either RCW 26.09.100 ⁷ or RCW 26.09.170. ⁸ Under the former statute, it was incumbent upon the superior court to award child support which would satisfy the reasonable needs (both present and foreseeable) of the child in light of the present economic circumstances, as well as the future economic prospects of the parents, their earning capacities, and the family unit's predissolution standard of living. Puckett v. Puckett, 76 Wash.2d 703, 458 P.2d 556 (1969). In the instant case, the trial judge, a resident in the county where Washington State University is located, was well aware that the legislature over the last several sessions has granted periodic cost of living increases to those employed in higher education. He was also aware that those in the petitioner's position as a Professor of Engineering often receive income from outside sources, E. g., consultation fees. ⁹ Additionally, the record clearly discloses that respondent's present and future employment prospects were considerably less than the petitioner's. Hence, we find no abuse of discretion when the court, after considering the needs of the child, the sources of income then available or foreseeably available to the parents, concludes that an open-ended escalation clause would reasonably assure the child of his present as well as his foreseeable economic well-being.

The award does not impugn the efficacy of the latter statute since petitioner may at any time seek modification of the support award should a change occur in the circumstances which the court relied upon for the original decree of support. ¹⁰

Additionally, we find no merit in the ancillary ground for challenging the escalation clause, I. e., the difficulty in determining amounts should petitioner not pay as directed. Experience clearly shows that even with a decree wherein a definite amount for support is set, enforcement proceedings often require an accounting to determine if, in fact, all payments have been made as directed, wholly missed, or only paid in part.

The final assignment of error, the awarding of $1,000 attorney's fees, plus costs of $180 to the respondent is without merit. We find no abuse of discretion in the trial court's award. It is undisputed that although the respondent was not destitute, the petitioner was in a far better position to pay the attorney's fees, not only because of his economic position, but also because he received a substantial portion of the community assets of the parties far...