Potter v. Potter

Citation282 P.2d 1052,46 Wn.2d 526
Decision Date28 April 1955
Docket NumberNo. 32978,32978
CourtUnited States State Supreme Court of Washington
PartiesAmerlia POTTER, Appellant, v. Norman POTTER, Respondent.

Brightman, Roberts & Holm, Renton, for appellant.

Thomas G. McCrea, Everett, for respondent.

HAMLEY, Chief Justice.

Plaintiff appeals from the decree entered in this divorce action.

While not complaining of the decretal provision granting respondent a divorce, appellant contends that the trial court erred in not also granting her a divorce. If this was error, it was not prejudicial. Smith v. Smith, Wash., 277 P.2d 339.

Appellant asserts that the trial court erred with respect to the distribution of property. Under the decree, all of the property was awarded to respondent, subject to a lien in the amount of twenty-five hundred dollars, in favor of appellant, payable fifty dollars a month.

Respondent paid and appellant accepted four or five monthly payments made under this provision of the decree. The acceptance of such payments constitutes a waiver of the appeal, at least in so far as the property award is concerned. Lyons v. Bain, 1 Wash.T. 482; Murray v. Murray, 38 Wash.2d 269, 229 P.2d 309. See, also, 169 A.L.R. 985, 999, annotation.

The remaining assignments of error deal with the evidence received, findings and conclusions made, and order entered concerning the care, custody, and control of the minor son.

The boy was twenty months old at the time of the trial. The decree provided that appellant should have the care, custody, and control of the child until October 1, 1954 (five months after entry of the decree). The decree further provided that, on October 1, 1954, the parties should appear before the court for a determination as to whether any change should be made in the custody provision. By stipulation, the parties have agreed that, after disposition of this case on appeal, the custody hearing originally set for October 1, 1954, shall be held, by noting the matter on the trial calendar in the usual way.

Appellant contends that the trial court erred in receiving evidence that appellant had four previous marriages; in finding that there was 'more evidence of stability on the part of the defendant than on the part of the plaintiff;' in failing to find that appellant is a fit and proper person to have the care, custody, and control of the child; and in awarding appellant only temporary custody of the child, subject to review five months after entry of the decree.

A finding of unfitness to have the custody of a child may not be predicated upon acts occurring prior to the marriage. Curtis v. Curtis, 46 Wash. 664, 91 P. 188.

Here, however, the evidence concerning the number of appellant's previous marital ventures has not been used as a basis for finding unfitness. No such finding has been entered. The questioned evidence served only to raise a doubt in the mind of the trial court as to appellant's...

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13 cases
  • Marriage of Hadley, In re
    • United States
    • Washington Supreme Court
    • June 9, 1977
    ...Neb. 812, 135 N.W.2d 704 (1965). Respondent has urged that Murray v. Murray, 38 Wash.2d 269, 229 P.2d 309 (1951) and Potter v. Potter, 46 Wash.2d 526, 282 P.2d 1052 (1955), control the disposition of this issue. However, in neither of these cases was there a showing of either total disabili......
  • Little v. Little
    • United States
    • Washington Supreme Court
    • October 8, 1981
    ...of entering the decree of divorce, where the welfare of the child made postponement of a final decision desirable. Potter v. Potter, 46 Wash.2d 526, 282 P.2d 1052 (1955). We have also recognized the right of the Superior Court in entering a modification order to defer final determination on......
  • Barefield v. Barefield, 38467
    • United States
    • Washington Supreme Court
    • August 18, 1966
    ...a finding that the person being given the children is a fit and proper person to be entrusted with their upbringing. Potter v. Potter, 46 Wash.2d 526, 282 P.2d 1052 (1955). In the case at bar that issue has simply not been adequately explored and it cannot be determined until additional evi......
  • Buckley v. Snapper Power Equipment Co.
    • United States
    • Washington Court of Appeals
    • June 24, 1991
    ...and renders an appeal of the judgment moot. Murray v. Murray, 38 Wash.2d 269, 273-74, 229 P.2d 309 (1951); Potter v. Potter, 46 Wash.2d 526, 527, 282 P.2d 1052 (1955). Furthermore, return of the money to the clerk of the court does not serve to reinstate a party's right to appeal. Lyons v. ......
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2 books & journal articles
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Appellate Practice Deskbook (WSBA) Table of Cases
    • Invalid date
    ...City of Tacoma, Dep't of Pub. Works, Bldg. & Land Use Servs. Div., 167 Wn.2d 300, 217 P.3d 1179 (2009): 21.2(5), 21.4(4) Potter v. Potter, 46 Wn.2d 526, 282 P.2d 1052 (1955): 13.2(1), 13.2(2) Powell, In re, 92 Wn.2d 882, 602 P.2d 711 (1979): 24.3(1), 24.5(1)(k) P.P.T., In re, 155 Wn. App. 2......
  • § 13.2 Acceptance of Benefits
    • United States
    • Washington State Bar Association Washington Appellate Practice Deskbook (WSBA) Chapter 13 Losing the Right to Seek Review by Actions on Appeal
    • Invalid date
    ...the right to seek review of that decision. E.g., Anderson v. Port of Seattle, 66 Wn.2d 457, 459, 403 P.2d 368 (1965); Potter v. Potter, 46 Wn.2d 526, 527, 282 P.2d 1052 (1955); Maxham v. Berne, 88 Wash. 158, 160, 152 P. 673 (1915). This traditional rule, called the "acceptance of benefits d......

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