Mumm v. Mumm

• Court: Washington Supreme Court
• Writing for the Court: OTT
• Citation: Mumm v. Mumm, 63 Wn.2d 349, 387 P.2d 547 (Wash. 1963)
• Decision Date: 05 December 1963
• Docket Number: No. 36671
• Parties: Leona M. MUMM, Respondent, v. John Paul MUMM, Appellant.

Page 349

63 Wn.2d 349

387 P.2d 547

Leona M. MUMM, Respondent, v. John Paul MUMM, Appellant.

No. 36671.

Supreme Court of Washington, Department 2.

Dec. 5, 1963.

Rehearing Denied Jan. 30, 1964.

Alexander L. Cain, Max R. Nicolai, Seattle, for appellant.

Merges, Brain & Hilyer, G. Robert Brain, Seattle, for respondent.

OTT, Chief Justice.

John and Leona Mumm were married September 3, 1955. June 28, 1960, Leona Mumm commenced this action for divorce. John Mumm cross-complained. The trial court granted each a divorce and made a property division. John Mumm has appealed.

Appellant asserts that 'all of the Assignments of Error concern the trial court's division of property between the parties.'

During the marriage, Leona Mumm was employed for about three years and earned approximately $4,000 as year. She deposited her earnings in the joint bank account and, in addition, deposited $12,000 which she had inherited. Her husband deposited a part of his earnings from his pinball business in a joint account. The two accounts were used largely to pay living expenses and to make installment payments on their investments.

The court awarded to each spouse all items which were conceded to be the separate property of each. During marriage, property was purchased which, at the time of the divorce, the court found had a community equity as follows:

 "1.  Defendant's checking account                        $ 100.00
                 "2.  Plaintiff's checking account                         205.77
                 "3.  Plaintiff's savings account                         3,134.90
                 "4.  Home property located on 2nd N. W.                  8,732.75
                 "5.  Equity in Whidby Island Property                    1,460.00
                 "6.  Equity in Sand Point Tri-plex                       1,500.00
                 "7.  Burien House and Lots                               5,623.15
                 "8.  Equity in Ballard Smoke Shop                       38,750.00
                 "9.  Clearview lots--lien by community                   4,037.37
                "10.  Lien by community against Hasty Tasty parking lot   1,600.00
                "11.  Equity in stock Ideal Novelty--community interest  20,000.00"
                The court further found that, from the total community equity of $85,152.94
                        the parties, by agreement, were to share equally in the accountant's fee of
                        $1,250, leaving a net community equity of $83,902.94.  The court concluded
                

'That the plaintiff [respondent] shall receive as her share of said community property her checking account in the amount of $205.77, her savings account in the amount of $3,134.90 and a Judgment against the defendant [appellant] in the amount of $38,610.00, secured by a second mortgage against the community interest in the Ballard Smoke Shop. That said Judgment shall be payable at $10,000.00 within three months after date of the Decree, and $5,000.00 every three months thereafter, with interest on the outstanding balance at 4% per annum. Defendant shall have the option of reducing quarterly payments to a minimum of $2000.00 but shall pay 6% instead of 4% on any reduction from above. Defendant shall have a credit for 1/2 of any additional tax paid on 1959 Income Tax Amended Return.'

Appellant contends that the award to the respondent was inequitable because the itemized properties were purchased with his earnings and were his separate property, due to the fact that, some three years after the parties were married, they entered into the following agreement:

'THIS AGREEMENT is entered into between John Mumm and Leona Mumm, husband and wife, for the purpose of clarifying the status of the property of each, it being the desire of each party that as between themselves the property should be clearly separated and earmarked so as to eliminate community property claims; and accordingly

IT IS AGREED between the parties hereto that whatever property each had, be it real, personal or mixed, prior to their marriage, remains the sole and separate property of each; and that any property accumulated by either party subsequent to the marriage, shall be deemed the separate property of the person who personally acquired the same as wages or other earnings; THAT IS TO SAY that all wages and other personal earnings of Leona Mumm and all assets acquired by her with said earnings, shall be and remain her separate property, and conversely, that all wages and other personal earnings of John Mumm and all assets acquired by him with said earnings, shall be and remain his separate property.

'IT IS AGREED that during the continuance of the marriage John Mumm will furnish the maintenance of the household, including all necessaries, for the parties hereto.

'DATED at Seattle, Washington, this 25 day of August, 1958.'

Prior to the execution of the agreement, the parties deposited...