Penney v. Penney
| Decision Date | 25 March 1929 |
| Docket Number | 21683. |
| Parties | PENNEY v. PENNEY. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Robert M. Jones, Judge.
Action by Ralph E. Penney against Nelly Penney. From judgment denying him any relief, the plaintiff appeals. Reversed, with direction.
Danson Lowe & Danson, of Spokane, and L. B. Schwellenbach, of Seattle, for appellant.
Dykeman Manheimer & Griffin, of Seattle, for respondent.
The record parties to this action were divorced by a decree entered by the superior court for Yakima county on August 28, 1918. Among other things that decree provides:
In June, 1928, this proceeding was begun in the superior court for King county (presumably because the defendant was then a resident of King county), seeking a modification of the former decree, to the extent of awarding the custody of the minor child Virginia to the father, and the abrogation of the provision for the payment by the father to the mother of the sum of $40 per month for the support of Virginia.
The defendant, though served with process, made no written or personal appearance, and at the trial appeared only by her attorney, who seems to have so appeared in the interest of those to whom the mother had committed the child, since they, only, offered any defense.
The trial court denied any relief, and the plaintiff has appealed.
It fairly appears from the evidence that the little girl Virginia was about 3 years old when the decree was entered, and that for approximately six months after the entry of the decree she remained with her mother or with relatives of her mother. In February, 1919, the child Virginia was, by the mother, placed with a Mrs. Mohr and her daughter Jessie Mohr who were entire strangers to the blood and wholly unknown to the father.
In the meantime the father had married again, and, shortly after the child had been placed with the Mohrs, desiring to see her, he, after some trouble and effort and through correspondence with the mother, learned that the child was being cared for by the Mohr family near Centralia, Wash. There he went from his home in Yakima to see the child, but, according to his testimony, he did not receive a cordial welcome, was not permitted to see the child except in the presence of members of the Mohr family, and his suggestions that he be permitted to take the child home with him were not entertained, he being informed that the mother had instructed them not to give up the child. Again in January, 1920, the father sought to visit the child, and after considerable search and inquiry found that the Mohr family had removed to Aberdeen, where he did visit the child with about the same results as before.
The father, not being satisfied with this situation and with the child being left in the custody of strangers, interviewed the trial judge who had entered the decree, and consulted an attorney in Yakima, seeking some method by which the child could be returned to him and become a member of his new family. His attempts in this direction were at that time discouraged by those he consulted, for reasons not now necessary to state.
Shortly following this the father, partly for business reasons and partly because he desired an outdoor life for his health's sake, removed with his family, then consisting of his wife and a son born of the first marriage, to Alberta, where he settled upon an irrigated tract, invested all his financial means, and undertook the venture of planting an orchard.
Up to the time the father removed to Canada he had paid the $40 per month, provided for in the decree, to the mother or her attorney. At about the time he so removed he received a message from the mother, through his own attorney, to the effect that she had married a wealthy man, would take Virginia into her new home, and no longer needed the $40 per month. The father acquiescing therein made no further payments. It appears that the child was not so taken to the new home, but remained with the Mohrs at all times, and the mother, it seems, was afterwards divorced from her second husband, and, in course of time, married a third husband with whom she is now living in Seattle.
The father's farming venture in Canada proved a complete financial failure. He lost everything he had, and after some 3 years returned, practically penniless, to Washington, taking up his residence near Spokane, where for a time he engaged in farming, but being again unsuccessful sought and maintained employment as a dentist upon a salary. The family was very close pressed financially for a considerable time, being in want of many of the actual necessities of life, and only when the father began to get upon his feet financially did he again renew his attempts to obtain the custody of the child Virginia.
Shortly after becoming employed on a salary he employed an attorney in Spokane for the purpose of obtaining the custody of the child, but that attorney's efforts seem to have been delayed and thwarted because at that time the whereabouts of the mother could not be ascertained. Finally after some time the mother's Seattle address was obtained. The father went to see her in Seattle at that address only to learn that she had gone to Alaska. In the meantime, the Mohr family with Virginia had removed to Bellingham, and the father went there to see them and her with no satisfactory results. His attempts to see the child seem to have been rather vigorously discouraged, and at this time apparently the Mohrs made claim that there was due them $40 per month for the care of the child during the whole time that she had been with them, that nothing whatever had been paid to them, and there is some showing that they used this situation to strengthen their claim of right to retain the child and to hamper and delay the father's attempt to regain her custody.
Whether the Mohrs were as purely financially minded as the father thought, it is not necessary now to inquire, but apparently he had reason to feel that the Mohrs would only surrender the child to him upon payment of $40 per month for the entire term that she had been with them, and, of course, such a payment in a lump sum was entirely beyond his financial ability.
The father then employed an attorney in Seattle with instructions to obtain the custody of the child, but here again there was delay, but delay without the father's fault or connivance. The attorney appears to have thought that something might be arrived at by negotiating, and delayed bringing any action for a considerable time, though he finally did file a petition to modify the decree in the Yakima court.
Several visits were made to Bellingham by...
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