Mosher v. Mosher

• Decision Date: 26 August 1946
• Docket Number: 29831.
• Citation: 172 P.2d 259,25 Wn.2d 778
• Parties: MOSHER v. MOSHER.
• Court: Washington Supreme Court

172 P.2d 259

25 Wn.2d 778

MOSHER v. MOSHER.

No. 29831.

Supreme Court of Washington

August 26, 1946

Department 2

Action by Mabel B. Mosher against Harry A. Mosher, to recover an alleged unpaid balance of payments ordered for support of the parties' minor children. From a judgment for plaintiff granting an amount less than that prayed for by plaintiff defendant appeals and plaintiff cross-appeals.

Appeal from Superior Court, Grant County; E. W. schwellenbach judge.

Clapp &amp Rea, of Ephrata, for appellant.

Cheney, Hutcheson & Gavin, of Yakima, for respondent.

ROBINSON Justice.

The parties to this case were married in 1921, while residents of the state of Washington. Their daughter, Maxine Mosher, was born on August 26, 1922, and their son, Harry, on September 28, 1925. In December, 1928, the family moved to Portland, Oregon. On May 14, 1930, plaintiff was granted a divorce from the defendant in the circuit court of the state of Oregon, for the county of Multnomah. The decree, a photostatic copy of which is among the exhibits, awarded the custody and control of the children, then seven and four years old, respectively, to the plaintiff, providing, however, that the defendant should be entitled to have them with him at reasonable times; and further, that defendant should pay every month the sum of fifty dollars 'toward the support and maintenance of said minor children.'

'* * * beginning with the 5th day of July A. D. 1930, until the said child Dorothy Maxine Mosher reaches the age of majority, and then said defendant shall pay to the Clerk of this Court each and every month towards the support and maintenance of the said Harry Neal Mosher, the sum of Twenty-five ($25.00) Dollars per month upon the 5th day of each month thereafter until the said Harry Neal Mosher reaches the age of majority; * * *.'

This action was brought in Grant county in November, 1943, to recover an alleged unpaid balance of the payments ordered for the support of the children. The amended complaint, filed July 12, 1944, prayed for a judgment for $6,820, with interest on each monthly installment from the date of accrual until paid, an attorney's fee of $1,000, and costs to be taxed; also, 'That said Oregon decree be established as a decree of this court to be enforced by contempt proceedings, sequestration proceedings, and by receivership proceedings as such decrees may be enforced under the laws of the State of Washington and the jurisdiction of the court of equity.'

The answer denied the material allegations of the complaint and set up six affirmative defenses. The trial court, holding that the six-year statute of limitations was applicable, gave the plaintiff judgment for $1,725, with respect to the support money decreed as to the daughter, Maxine, or twenty-five dollars per month for a period of six years, less three months, to wit,--'from December, 1937, to and including August, 1943'--on the 26th day of which month Maxine became twenty-one years of age; also, judgment with respect to the support of the son, Harry, for $1,800, or twenty-five dollars per month from December, 1937, to and including November, 1943, or in all $3,525, together with interest as prayed for; and further decreed that the defendant was obligated to pay twenty-five dollars for the support of the son by the 5th of each and every month, beginning with December 5, 1943, and continuing until and including September, 1946, during which month the son will become twenty-one years of age.

The decree further ordered that the defendant should be required to pay all sums hereinBefore mentioned, both those which had been accrued and those to become due in the future, and provided that: '* * * this judgment and decree may be enforced by contempt proceedings, execution or otherwise and that the plaintiff shall have all of the remedies for the enforcement hereof as provided by the laws and statutes of the State of Washington, the same as though the said judgment for said child support money had been originally entered in the Superior Court of the State of Washington.'

Both plaintiff and defendant have appealed. The appellant has submitted for our consideration thirteen assignments of error; the cross-appellant, five. An attempt to discuss all of the assignments within the permissible limits of one opinion could only result in an inadequate consideration of those upon which the parties principally rely. We think that appellant's counsel, after having fully considered the cross-appellant's brief, have clearly indicated the contentions upon which they principally rely in the closing paragraph of their reply brief, which reads as follows:

'The appellant respectfully submits that this action should be dismissed because the Superior Court of the State of Washington for Grant County does not have sufficient jurisdiction to maintain the same but that should this court be of the opinion that the Superior Court of Grant County has some jurisdiction that the judgment of that court be reversed and that trial court be instructed to change the judgment to a judgment for money only as in an action at law and the amount due, if any be determined by holding that Dorothy Maxine Mosher reached the age of majority when she became 18 years of age and by considering the agreement between the parties for reduced payments and by considering the period of time during which no installment judgments accrued by reason of the emancipation of the children.'

From this we gather that appellant's contentions are: (1) that the superior court of Grant county was without jurisdiction; (2) that, if it did have jurisdiction, it was only to render a money judgment, as in a suit at law; (3) that the court should not have allowed any recovery of support money for the daughter, Maxine, after she had reached the age of eighteen; (4) that the court should have found that the payments ordered in the divorce decree were reduced by a contractual agreement between the parties to the action; (5) that an excessive amount was allowed as to each of the children, because in each case a portion thereof accured after emancipation.

We will discuss the appellant's contentions in the order above stated. He asserts, and the evidence conclusively shows, that, for a number of years, the plaintiff and her children were domiciled in Thurston county. He contends that Rem.Rev.Stat. § 995-2, fixes the jurisdiction in that county only, and relies upon our recent opinion in State ex rel. Jiminez v. Superior Court for Spokane County, 24 Wash.2d 194, 210, 163 P.2d 610, as supporting authority. But the language used in that opinion must be interpreted in the light of the fact that the court was then dealing (1) with an action to modify a decree, and (2) with a decree that was entered in the superior court of the state of Washington, for the county of Spokane. The case at bar is not one to modify a decree, but to enforce a decree, and it is not a decree of any Washington court, but a decree of a court of the state of Oregon; in other words, a foreign decree, to which nothing in § 995-2 or in the chapter of Rem.Rev.Stat. in which it is codified, applies. We, therefore, reject appellant's first contention.

As to contention (2), we think that the case of Shibley v. Shibley, 181 Wash. 166, 42 P.2d 446, 97 A.L.R. 1191, is so complete an answer that we would not be justified in enlarging upon what is said therein.

Appellant's contention (3) presents a more difficult question. The Oregon decree provided that the defendant should pay the sum therein specified for the support of Maxine Mosher 'until the said child Dorothy Maxine Mosher reaches the age of majority.' At the time the decree was entered, a female person, under the then existing statute of Oregon, reached majority at the age of eighteen, but, when Maxine was in her thirteenth year, the Oregon legislature passed an act providing that all persons should arrive at majority at the age of twenty-one years. The appellant contends that, since the age of majority was eighteen at the time the decree was entered, its language, 'until the said child Dorothy Maxine Mosher reaches the age of majority,' is as definite and certain as it would have been had the decree said, until the said child Dorothy Maxine Mosher reaches the age of eighteen. This court so held, when faced with parallel facts, in Springstun v. Springstun, 131 Wash. 109, 229 P. 14, 40 A.L.R. 595.

However, in State ex rel. Weingart v. Kiessenbeck, 167 Or. 25, 114 P.2d 147, 152, the supreme court of Oregon, on parallel facts reached a decision which is directly contrary to our decision in the Springstun case. In the Kiessenbeck opinion, it is said: 'We rest our decision squarely upon the proposition that the original decree, properly construed, would require defendant to provide support until such time as the child should reach her majority. In view of the amended statute she never reached her majority until she became twenty-one.'

In the instant case, the trial judge was in conformity with rules of comity enforcing an Oregon judgment and decree, and it was necessary, of course, to determine the extent of the right sought to be enforced. This was a substantive question, and therefore, one to be determined in accordance with the law of the place where the decree was entered. The trial judge was bound to apply the Oregon statute and further to interpret the language of the decree as the Oregon courts have interpreted the same language in other Oregon decrees, if such an interpretation could be found. He found the exact answer to the question which confronted him in the Kiessenbeck case, and, accordingly, held (although stating that, if he was enforcing a Washington decree, he would have held otherwise) that Maxine Mosher...