Rivard v. Rivard, 40573

• Decision Date: 27 February 1969
• Docket Number: No. 40573,40573
• Citation: 75 Wn.2d 415,451 P.2d 677
• Court: Washington Supreme Court
• Parties: Reynold J. RIVARD, Respondent, v. Jacquelyn RIVARD, Petitioner.

Page 415

75 Wn.2d 415

451 P.2d 677

Reynold J. RIVARD, Respondent, v. Jacquelyn RIVARD, Petitioner.

No. 40573.

Supreme Court of Washington, Department 2.

Feb. 27, 1969.

Maslan & Hanan, J. Stephen Funk, Seattle, for petitioner.

Glenn W. Toomey, Seattle, for respondent.

ARMSTRONG, Judge. ^*

Respondent Reynold J. Rivard and petitioner Jacquelyn Rivard were married in 1962 and two children were born of the marriage. The marriage culminated in a default divorce, entered in favor of respondent in 1968. Petitioner was given custody of the two minor children and reasonable rights of visitation were reserved to the father. Thereafter the parties were apparently unable to agree as to what constituted reasonable visitation rights and respondent served a motion for definition, clarification and specification of visitation rights and asked to have the children on alternate weekends and one evening per week, alleging that petitioner would allow him to see the children only on alternate Sundays and one evening per week.

Both parties filed sharply conflicting affidavits in the matter and a hearing was held on August 28, 1968. The trial court, after hearing arguments of both counsel and examining the affidavits, granted respondent Rivard's motion and the visitation rights for which he had asked. Jacquelyn Rivard then applied to this court, by way of writ of certiorari, contending, among other things, that the trial court had no jurisdiction to grant the motion inasmuch as the visitation rights given to respondent Rivard constituted a modification of the divorce decree and that the proper procedure to obtain a modification had not been followed.

The distinction between a modification and a clarification, with regard to visitation rights, has never been squarely before this court. Two cases, however, have discussed this issue.

In State ex rel. Edwards v. Superior Court, 37 Wash.2d 8, 221 P.2d 518 (1950), a decree of divorce was entered and custody of the two minor children was given to their mother, with the father receiving reasonable visitation rights. Thereafter, the father remarried, moved to Montana, and filed a motion seeking an order granting him the right to have the children for 6 weeks during the summer months in Montana. The mother then filed a writ of prohibition with this court to restrain the superior court from assuming jurisdiction, arguing that a modification of the divorce decree was being sought and not, as the father argued, a clarification.

This court held the action of the father, in attempting to take the children outside the jurisdiction of the court for 6 weeks, went further than a mere interpretation of the visitation privilege and the proceeding, to be effective, would require a modification of the decree.

The court stated at 9, 221 P.2d at 519: But with such a visitation privilege as given in the decree, it will require a modification of or change in it in order that the children may be taken beyond the jurisdiction of the court and for such a long period as requested. The decree is not that broad and cannot be so extended by means of interpretation.

In Paulson v. Paulson, 37 Wash.2d 555, 225 P.2d 206 (1950), custody of the minor children was given to the husband, and the wife was given the right of reasonable visitation during vacation and holiday periods. The mother construed this to mean that she was entitled to the children during the entire summer months and sought to have an order issued directing the father of the children to surrender the children during that period. The trial court denied the motion and entered an order allowing the mother to have the children every other weekend and for 2 weeks during the summer. The court held the order to be a clarification of the decree, not a modification, and stated at 560, 225 P.2d at 209:

Many trial courts do what was done in this case, I.e., leave considerable latitude in the matter of visitation privileges, for the reason that, if the parties are reasonable in their approach to the problem, they can work it out on a mutually satisfactory basis and avoid the difficulties inherent to a hard and fast visitation schedule.

If, however, the parties cannot agree, the court must then define the privilege so minutely that there can be no opportunity for misunderstanding.

The court then stated that whether the order was a modification or a clarification was not in issue since the appellant did not assign error to the court's action.

Starkey v. Starkey, 40 Wash.2d 307, 242 P.2d 1048 (1952), is a similar case. The court made the following statement at 317--318, 242 P.2d at 1053:

It will be observed that neither party is complaining of the change in visitation rights to the extent provided in the instant decree. It is therefore unnecessary to decide whether such change constitutes a modification of the divorce decree which was beyond the authority of the court in this proceeding, State ex rel. Edwards v. Superior Court, Supra; or was a reasonable clarification of rights not amounting to a modification of the divorce decree. Paulson v. Paulson, 37 Wash.2d 555, 225 P.2d 206.

In analyzing these three cases, it appears that the court in Starkey v. Starkey, although by way of dicta, recognized State ex rel. Edwards v. Superior Court, Supra, to be an example of a modification and Paulson v. Paulson, Supra, to be a clarification situation. Although Paulson was decided on other grounds, we think the court's...