Pishue v. Pishue

• Citation: 32 Wn.2d 750,203 P.2d 1070
• Decision Date: 14 March 1949
• Docket Number: 30736.,30735
• Parties: PISHUE v. PISHUE et al. PISHUE v. PISHUE.
• Court: United States State Supreme Court of Washington

203 P.2d 1070

32 Wn.2d 750

PISHUE v. PISHUE et al.

PISHUE v. PISHUE.

Nos. 30735, 30736.

Supreme Court of Washington

March 14, 1949

Department 2

Consolidated actions for divorce by Bessie Pishue against George Sam Pishue and against the Peoples National Bank of Washington West Seattle Branch, wherein the plaintiff was granted a divorce, and $100 a month for maintenance and support of a child, and by Bessie Pishue against Sam P. Pishue as Guardian of George Sam Pishue, incompetent, to recover amount due under divorce decree for maintenance and support of the child. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, King County; James B Kinne, judge.

Wettrick Flood & O'Brien, of Seattle, for appellant.

Monheimer, Schermer & Mifflin, of Seattle, for respondents.

SCHWELLENBACH Justice.

On April 18, 1946, Bessie Pishue was granted an interlocutory order of divorce against her husband, George Sam Pishue. The order awarded her the custody of their child, and among other provisions, awarded her 'until further order of the court' the sum of $100 per month for the maintenance and support of the child. A final decree of divorce was entered November 1, 1946.

On August 1, 1946, George Sam Pishue was, by decree of court, declared incompetent. He was committed to the Veterans' Hospital at American Lake, where he was confined for approximately six weeks, when he was released to his father, and has since remained with him. The father was appointed his guardian on April 7, 1947.

The $100 payments provided for in the interlocutory order were paid up to August 1, 1946 (the date George Sam Pishue was declared incompetent) and then ceased. Since that time, the husband has not worked, and, at the time of trial the guardianship estate consisted of an automobile, and the sum of $1,779.63, which had been paid by the Veterans' Administration for the care and support of the incompetent veteran ward. The Veterans' Administration had, in addition thereto, paid the wife $427.80, at the rate of $13.80 per month, for the support of the child. The $13.80 was taken out of the disability allowance for the veteran.

Two claims were filed in the guardianship proceeding, one by the wife in the sum of $1,100, plus $100 per month from July 1, 1947, based on the judgment; and one by the father, in his individual capacity, in the sum of $1,488.24, plus $40 per month, for sums advanced for the care, support and maintenance of the ward. The father, as guardian, rejected the claim of the wife, and she commenced this action for the enforcement of her claim.

In the divorce action, the husband, through the father, as guardian, sought to have the interlocutory order and final decree modified by the entry of an order declaring that there were no sums due and owing from the defendant to the plaintiff, and suspending all payments for the care and support of the child. The two cases were consolidated for trial.

In the divorce action the trial court modified the divorce decree by reducing from $100 per month to $35 per month, the amount to be paid by the defendant to the plaintiff for the care and support of the minor child; making such modification effective as of August 1, 1946; and ordering that any sums in excess of $35 per month from August 1, 1946, claimed as due for support money, be expressly cancelled and extinguished; and ordering that there be credited against any amount due at $35 a month from August 1, 1946, the sum of $427.80 received by plaintiff from the Veterans' Bureau, and leaving a balance due of $307.20.

In the guardianship proceeding it was decreed that the claim of the plaintiff was approved in the sum of $35 per month from August 1, 1946; and judgment was granted against the guardian in the sum of $307.20. This appeal follows from both judgments.

We find it necessary to discuss each case separately. There is no question as to the right of the court, in a divorce action, to modify a judgment relative to support money, from time to time as circumstances may require. Rem.Rev.Stat. (Sup.) § 988. Respondent takes the position that under either Rem.Rev.Stat. (Sup.) § 988 or § 988-2, the court can modify an interlocutory order as to support or alimony payments to operate retroactively. Rem.Rev.Stat. (Sup.) § 988 provides in part: '* * * which order as to alimony and the care, support and education of children may be modified, altered and revised by the court from time to time as circumstances may require; * * *'.

Rem.Rev.Stat. (Sup.) § 988-2, provides substantially the same, but makes the statute applicable to orders entered prior to its enactment in 1933. The order in the present case having been entered in 1946, we will not concern ourselves with § 988-2.

The statute above quoted contains nothing to the effect that any modification or alteration thereunder may be entered to operate retroactively. The cases have consistently held otherwise, and in the absence of clear authority in the statute, if such authority could be given, the following cases are still the law of this state. Beers v. Beers, 74 Wash. 458, 133 P. 605; Kinne v. Kinne, 137 Wash. 284, 242 P. 388; Boudwin v. Boudwin, 159 Wash. 262, 292 P. 1017; Phillips v. Phillips, 165 Wash. 616, 6 P.2d 61. In the latter case we said:

'As to installments of alimony

"The rights and liabilities of the parties become absolute and fixed at the time provided in the decree for their payment, and to this extent the judgment is a final one.' [Citing cases.]'

Respondent calls our attention to the recent case of St. Germain v St. Germain, 22 Wash.2d 744, 157 P.2d 981, and Anderson v. Anderson, 27 Wash.2d 122, 177 P.2d 83, in which we approved decrees modifying retrospectively payments due for support money by ordering those payments then due, from the date of the entry of the order of...