Robinson v. Robinson

• Decision Date: 30 November 1950
• Docket Number: 31440.
• Citation: 37 Wn.2d 511,225 P.2d 411
• Court: Washington Supreme Court
• Parties: ROBINSON, v. ROBINSON.

225 P.2d 411

37 Wn.2d 511

ROBINSON, v. ROBINSON.

No. 31440.

Supreme Court of Washington.

November 30, 1950

Harry Ellsworth Foster, Olympia, and Tanner, Garvin & Ashley, Seattle, for appellant.

Gladys Phillips, Aberdeen, for respondent.

HILL, Justice.

The question presented is whether the superior court for Grays Harbor county had jurisdiction to enforce by execution (comparable to a writ of assistance) the provisions of a property settlement agreement as set forth in a stipulation which had been incorporated by reference into and made a part of an interlocutory decree.

Lois Robinson brought an action for divorce against John C. Robinson. During the trial and after the judge had indicated his intention of granting a divorce to Mrs. Robinson, the parties entered into a property settlement agreement, which was captioned as a stipulation in the case and was filed as plaintiff's exhibit No. 3. Paragraph 1 thereof provided that Mrs. Robinson was to have awarded to her certain specifically described real and personal property five thousand dollars in cash, and five thousand dollars as an attorney's fee. We quote paragraphs 2, 3, 4 and 5 of the agreement and stipulation: '2. Defendant [appellant] is to have set aside unto him as his separate property, all other property acquired by the parties hereto prior to marriage, or during the years of their marriage, whether said property be real, personal, or mixed, and wheresoever located, and plaintiff [respondent] does hereby renounce any interest in any of said properly not specifically described in Paragraph I hereof, and in consideration of the property herein awarded to her does hereby renounce all claims for alimony or support money, now or in the future.

'3. Each party hereto agrees to make, execute and deliver to the other party, any instruments necessary to immediately and effectually transfer the title of any of the properties covered by this agreement in accordance with the terms hereof.

'4. Defendant is to assume and pay all indebtedness incurred by either party prior to April 1, 1948.

'5. The court herein has orally ruled that he intended to grant a decree of divorce to the plaintiff in this matter. It is hereby agreed that this stipulation, and all of its terms, may be embodied in the interlocutory decree of divorce when formally entered.' (Italics ours.)

We also quote from the interlocutory decree, which was entered on April 5, 1948 'It Is Further Ordered, Adjudged And Decreed that the property settlement of the parties, on file herein and marked plaintiff's exhibit 3 be, and the same is hereby approved and confirmed, made a part hereof and incorporated in this decree the same as though specifically set forth herein.'

The final decree entered October 13, 1948, contained the usual recitation that the interlocutory decree was in all respects approved and affirmed.

The Robinsons were married in 1939, and thereafter, including the year 1947 their income taxes were paid on the basis that all income was community property. In the spring of 1949, the bureau of internal revenue determined that much of the income had been from rents, issues and profits from Mr. Robinson's separate estate, and assessed a large additional separate income tax for the years in question. This reduced the amount of the community income and resulted in a determination that there had been an overpayment of more than twenty thousand dollars in taxes on the supposed community income.

Lois Fisher, the former Mrs. Robinson signed what is known as form No. 147-M, being a consent on her part to credit the overpayment on the supposed community income to the larger amount now assessed against Mr. Robinson on his separate income. She mailed this 'Consent to Credit' to her attorney in Aberdeen, who refused to deliver it to Mr. Robinson.

To compel its delivery, Robinson applied for what he refers to as a writ of assistance, i. e., he asked the court to require Lois Fisher and her attorney to deliver to him the 'Consent to Credit' referred to, and that, in the event of their failure so to do, the court appoint a suitable person to execute the necessary consent on behalf of Mrs. Robinson, in accordance with the property settlement agreement which had been made a part of the interlocutory decree. The common-law writ of assistance would be one of the writs referred to in Rem.Rev.Stat. §§ 511, 512, 513.

Lois Fisher appeared specially, challenging the jurisdiction of the court to enforce the interlocutory decree, and the trial court sustained the challenge on two grounds: (1) that the amount of the overpayment had not been Before the trial court and, not being disposed of by that court in the interlocutory decree, it remained the common property of the parties; and (2) that the interlocutory decree was final as to property rights and the court had no jurisdiction to alter, adjust or enforce it.

Mr. Robinson appeals.

The respondent on this appeal urges a third ground for the support of the trial court's conclusion that it was without jurisdiction to give the appellant the relief requested, i. e., that, although the interlocutory decree confirmed the property settlement and made it a part thereof, it did not order the parties to do anything and hence could not be enforced. In short, if the overpayment is property covered by the property settlement agreement, the appellant should be relegated to his contract rights.

We will consider these three arguments seriatum. The answer to the first is that, by the terms of the property settlement agreement and stipulation which became a part of the interlocutory decree, the respondent had renounced her interest in any property not specifically awarded to her, and all property not so awarded to her had been awarded to appellant; consequently, there was no newly discovered property Before the court for distribution. See Walker v. Walker, 327 Mich. 707, 42 N.W.2d 790.

The answer to the second argument is that appellant is not seeking to alter, modify or adjust any property rights, but is seeking to enforce the decree that was entered. It is true, as the trial court suggested, that under the divorce statutes here involved, Rem.1947 Supp. § 988; Rem.Rev.Stat. § 989, it had no jurisdiction to change the property rights as fixed by the interlocutory decree, Cassutt v. Cassutt, 126 Wash. 17, 217 P. 35; State ex rel. Bushnell v. Superior Court, 168 Wash. 326, 11 P.2d 1071; and we have held that the provisions of such decrees, as they relate to the payment of money (as distinguished from alimony or support money for children), cannot be enforced by contempt proceedings. State ex rel. Lang v. Superior Court, 176 Wash. 472, 30 P.2d 237; State ex rel. Foster v. Superior Court, 193 Wash. 99, 74 P.2d 479. As pointed out in Corrigeux v. Corrigeux, Wash., 224 P.2d 343, back of these cases is the constitutional provision that there can be no imprisonment for debt (state constitution, Art. I, § 17), together with holdings by this court and courts generally that alimony and support money for children is not a debt within the purview of such constitutional provisions.

The respondent says: 'Our court has considered the question of the jurisdiction of the court to enforce property settlements after the entry of the decree of divorce and has held uniformly that the court is without jurisdiction.'

The language of some of our cases may be broad enough to support that statement, but the actual holding of such cases is that our courts will not, by contempt proceedings, enforce payments of money (except for alimony and support of children). The reason for that, as we have pointed out, is a constitutional provision. However, this is not a contempt proceeding. It is inconceivable that a court in a divorce proceeding can divide the property between the parties and yet have no power to make that division effective if the parties are recalcitrant. The rule is well stated in Nelson on Divorce and Annulment (2d ed.), Vol. II, 285, § 16.01, where it is said: 'To the extent that the court has the power to adjust the property rights of the parties, it can require that its mandates be carried out, either by act of the party or by directing the making of a conveyance by a representative of the court if the party fails or refuses to make it. This is a generally recognized power of a court invested with authority to deal with property rights and interests. It is commonly exercised to effectuate transfer of interests if the parties are recalcitrant; thence there is nothing peculiar to divorce litigation in its application, where necessary, to carry out what the court is empowered to do by way of adjustment of rights and interests.'

If a court of equity could not enforce its decrees, "* * * obviously the court would be rendered impotent and we would have neither law nor order but every one could do as he or she pleased. Of course, such a situation cannot be countenanced by the courts for a moment." Tegtmeyer v. Tegtmeyer, 292 Ill.App. 434, 443, 11 N.E.2d 657, 661, as quoted in Brevet v. Brevet, 316 Ill.App. 406, 45 N.E.2d 199, 200.

We cannot agree with the trial court that it is without jurisdiction to make its property awards effective.

We come now to the third contention, that the decree does not order anything to be done and, hence, cannot be enforced. In State ex rel Ridenour v. Superior Court, 174 Wash. 152, 24 P.2d 418, 419, we refused to permit the enforcement by contempt proceedings of the provisions of a property settlement agreement relative to the payment of alimony. Our reasons, as there stated, were that '* * * the agreement to pay was not unconditional; nor was it incorporated in or made a part of the decree. The recital in the decree, that the agreement was made a part...