Roberts v. Roberts

• Decision Date: 01 December 1966
• Docket Number: No. 38652,38652
• Court: Washington Supreme Court
• Parties: Nora L. ROBERTS, Respondent and Cross-Appellant, v. Curtis L. ROBERTS, Appellant.

Page 863

69 Wn.2d 863

420 P.2d 864

Nora L. ROBERTS, Respondent and Cross-Appellant, v. Curtis L. ROBERTS, Appellant.

No. 38652.

Supreme Court of Washington, Department 1.

Dec. 1, 1966.

Derr & Knowles, Spokane, for appellant.

Hennessey, Curran, Jansen, Bentley & Kelly, Harry E. Hennessey, Spokane, for respondent.

HILL, Judge.

This is an aftermath of a 1946 divorce. It is a show cause proceeding instigated by the former wife to recover from the former husband some $1,330 of unpaid support money, which arrearage had accumulated during some 18 years and 4 months of payments (the difference between $17,570 which she conceded had been paid out of the $18,900 due); also to determine the interest of the former wife and the children in certain policies of insurance on the life of the former husband.

When the parties to this appeal were divorced, there were two children--John Whitlow Roberts, a boy of four; and Lynne Elizabeth Roberts, a girl of one. When the judgment here appealed from was entered, the boy was of age, and the girl was married.

The parties had made their own property settlement and support agreement before divorce. This was attached to and approved by the interlocutory decree of divorce September 3, 1946 (final decree October 8, 1947). The wife received the equity in their home, the furniture, and the custody of the children. The husband agreed to pay the wife $50 a month 'for the care, support and maintenance' of each of the children during their respective minorities.

In an entirely different section of the agreement, the parties dealt with their four policies of life insurance. In each policy, at that time, the husband was the insured and the wife the beneficiary. The section is as follows:

(2). Party of the second part (the husband) is to maintain in full force and pay all premiums prior to delinquency upon the following insurance policies:

(a). Policy #70815, Standard Insurance Co.,.$1000.00. Party of the first part (the wife) is to remain the irrevocable beneficiary, with the children as contingent beneficiaries.

(b). Policy #3103042, Northwestern Insurance Co., $3500.00. John Whitlow Roberts is to be the irrevocable beneficiary, with party of the first part as contingent beneficiary.

(c). Policy #3103041, Northwestern Insurance Co., $3500.00. Lynne Elizabeth Roberts is to be the irrevocable beneficiary, with party of the first part as contingent beneficiary.

Party of the first part releases all claim, right, title and interest with respect to the National Service Life Insurance of party of the second part.

It is agreed that the National Service Life Insurance policy was for $10,000.

From September, 1946, when the support payments began, through 1956, there were arrearages in the support payments amounting to an aggregate of $1,915 in the 124-month period. There were no arrearages during the years 1957 through 1964 and, according to our computation, the $1,915 arrearage was reduced to $1,030.

November 10, 1964, the former wife (hereinafter referred to as the plaintiff) secured an order in the divorce action directing the former husband (hereinafter referred to as the defendant) to show cause why he should not be held to be in contempt for failure to make the support-money payments then unpaid and for encumbering and depleting the three life insurance policies he had agreed to maintain in full force, and asking also costs and an attorney's fee.

The defendant answered that during the preceding 6 years he had paid to the plaintiff sums equal to and in excess of those required by their agreement.

With reference to the insurance policies, the defendant answered that they were still in effect, but conceded that the face amount payable on each policy was encumbered to the extent of certain unpaid premiums. He further alleged:

That at the time of entry into said Agreement it was the Defendant's intention that the purpose of the requirement for the maintenance of these policies for the benefit of the children was in connection with his lawful, legal obligation for the support of the children and that said requirement to maintain said policies would cease to exist at the time his requirements for the support of said children should terminate.

The trial court (1) gave plaintiff judgment for support money and interest in the sum of $1,625.80 ($1,006.00 ¹ for support money unpaid and $619.80 interest); (2) awarded the plaintiff $150 as attorney fees; and (3) held that 'Plaintiff has no status before this Court to require the Defendant to maintain the life insurance policies.'

The defendant appeals from (1) and (2); the plaintiff cross-appeals from (3).

We shall first consider the appeal.

Under our repeated holdings, each installment of alimony or child support, when unpaid, becomes a separate judgment and bears interest from the due date. Installments of alimony or child support, which accrued more than 6 years before the proceeding to collect them was commenced, are barred by the statute of limitations. Koon v. Koon, 50 Wash.2d 577, 313 P.2d 369 (1957); Schumacher v. Schumacher, 26 Wash.2d 23, 172 P.2d 841 (1946); Mosher v. Mosher, 25 Wash.2d 778, 172 P.2d 259 (1946); Herzog v Herzog, 23 Wash.2d 382, 161 P.2d 142 (1945); St. Germain v. St. Germain, 22 Wash.2d 744, 157 P.2d 981 (1945); Boudwin v. Boudwin, 159 Wash. 262, 292 P. 1017 (1930); Shannon v. Shannon, 193 Or. 575, 238 P.2d 744, 239 P.2d 993 (1952).

In this case, all installments of support money which had accrued within the 6-year statute of limitations had been paid, and the trial court should not have entered any judgment for arrearages, all of which had accrued prior to 1957.

The trial court erred in adopting the ingenious argument, made on the plaintiff's behalf, that once an installment of child support money is not paid on time any subsequent payment is applied first to the payment of the arrearage and, then, to meeting the current needs of the children. It is conceded that in certain situations payments as made can be applied, first, to past due indebtedness and, then, to current obligations. However, no precedent, making such application of current payments in child-support cases, has been cited to us, nor have we found any.

This court has heretofore said that such a claim of application of current payments to arrearages was 'not a tenable claim,' as applied to child-support cases. Schumacher v. Schumacher, supra.

This method of keeping judgments for support money alive has been suggested to us at least twice before, and the suggestion was rejected each time. In the Schumacher case, supra, the interlocutory decree (March 24, 1936; made final November 10, 1936), provided that the husband was to pay $30 a month for the care and support of a minor child. There were show cause proceedings in May and August, 1937, and in November, 1938, with mounting delinquencies. In the latter proceeding, the court changed the $30 a month to $15 on the first and $15 on the fifteenth of each month.

On February 10, 1939, the husband secured a modification whereby he was to pay $10 on the first and fifteenth of each month until the child attained the age of 6; thereafter to pay $12.50 on the first and fifteenth of each month 'until the child 'has finished high school or ceased to go to school, or until the further order of the court.''

August 24, 1945, the wife secured an order directing the husband to show cause why he should not pay her $830, the total amount he was in arrears in his alimony since the payments began in 1936.

The trial court found that all of the payments due under the order of February 10, 1939, had been paid, 'and that the judgments due to plaintiff prior to entry of order February 10, 1939, were barred by the statute of limitations.'

The wife appealed, contending that the payments made after February 10, 1939, should have been applied only on the existing judgment as a whole and to the oldest payments then delinquent under the order entered March 24, 1936. The court's answer was:

Each payment respondent was ordered to make under the 1936 interlocutory order and final decree of divorce for the support of his minor child constituted, as it became due, a judgment. (citing cases) As each separate installment awarded by a divorce decree for support of a minor child of the parties constitutes a judgment as it becomes due, there can be no basis for a proceeding to enforce its collection if such proceeding is commenced six years after the installment is due. (citing cases and statute).

It is not a tenable claim that the payments made in strict compliance with the order entered February 10, 1939, should be applied to anything other than the continued support of the minor child of the parties from date of entry of that order. (26 Wash.2d pp. 25, 26, 172 P.2d p. 842)

The same argument made by the plaintiff here was also made by the wife in Koon v. Koon, supra. She was given a judgment for all the monthly payments which had accrued within the 6-year period of the statute of...