Rock v. Rock, 36488

• Decision Date: 08 August 1963
• Docket Number: No. 36488,36488
• Court: Washington Supreme Court
• Parties: Ingeborg ROCK, Appellant, v. John Michael ROCK, Respondent.

Page 706

62 Wn.2d 706

384 P.2d 347

Ingeborg ROCK, Appellant, v. John Michael ROCK, Respondent.

No. 36488.

Supreme Court of Washington, Department 2.

Aug. 8, 1963.

Regal & McDonell, John Patrick Cook, Seattle, for appellant.

MacDonald, Hoague & Bayless, Max R. Nicolai, Seattle, for respondent.

DONWORTH, Judge.

This is an appeal from an order granting a new trial as to certain issues which were involved in a divorce action (visitation rights, child support and the division of property) and vacating the provisions of a divorce decree relating thereto. The order was entered on the motion of the husband (respondent) and was resisted by the wife (appellant).

Each party was seeking a divorce from the other. They had previously been married to each other and had been divorced. Two years later, they remarried, and, after seven years of their second marriage, the wife filed suit for a divorce on the grounds of cruelty and personal indignities rendering life burdensome. In his answer, the husband cross-complained for a divorce on the same grounds, alleging, inter alia, that:

'* * * The plaintiff has made an amorous alliance with Walter John, a man who was married at the time the alliance commenced but who started a divorce action a few days after the above-entitled divorce action was started by the plaintiff. Plaintiff spends much time with Walter John on week-ends and holidays, visiting him in Aberdeen over week-ends and having him to her house for long periods of time including Thanksgiving, Christmas and New Year's Day. Walter John, commonly introduces plaintiff as his 'future wife'. All of the above conduct constitutes cruelty and indignities rendering defendant's life burdensome.'

The parties reisded in the Blue Ridge district in Seattle and had two sons, who were 13 years and 7 years of age at the time of the trial. The trial began December 14, 1961, before a visiting judge from Whitman County and lasted three days. At the conclusion of the trial, the court orally announced its decision. A divorce was granted to each of the parties, and the husband was ordered to pay $180 per month support money for each child. The wife was given custody of their two sons and the husband was granted visitation rights. In dividing the property of the parties, the trial court was primarily concerned about the home property, because the oral decision began as follows:

'Gentlemen, since the wife so definitely and obviously insists on having this Blue Ridge home, and it does appear to be possible to give it to her, the court is going to do it, not that I think it is wise for her to attempt to live in any such style as that. It is going to be her problem as to whether she can support this home or not. I can't let her live there and have her expect her ex-husband will pay for it.'

After the court orally announced its decision, the husband moved for a reconsideration of a portion of the decision wherein it was stated that the court would require him to pay $180 per month for the support of each child.

The subsequent proceedings are described by the trial court in 'Additional Material to be Included in Statement of Facts' as follows:

'The defendant husband made a motion for reconsideration on the amount of support awarded by the Court and Mr. Cook, as counsel for plaintiff, and Mr. Brink, as counsel for the defendant, traveled to Colfax, Washington on Wednesday, December 27, 1961 to present proposed Findings of Fact, Conclusions of Law and Decree of Divorce and to argue the matter of support. During this argument which took place in Colfax, Washington, I asked Mr. Cook whether Mrs. Rock planned to be married again in the near future and he stated that he had talked with her only the day before and that she was firm in her position that she would not be remarried. I did thereupon deny any reconsideration of the support amount and signed the Findings of Fact, Conclusions of Law and Decree of Divorce on said December 27, 1961.

'My decision was based on the position as represented to me that Mrs. Rock would be living in Seattle, in the same home, with the needs that had been demonstrated at the time of trial.'

On the day after the court signed the findings, conclusions, and decree at Colfax, the documents were filed in the superior court for King County, to wit, on December 28, 1961.

Immediately following the filing of the decree, appellant and Walter S. John obtained a marriage license. He gave his address as Lake Oswego, Oregon. The parties were married at the Blue Ridge home at 5 p. m. December 28, 1961.

On the following day, respondent filed a motion for new trial supported by his affidavit. (Appellant states in her reply brief that she filed three affidavits in opposition to the motion, and that there is no indication that they were not considered by the trial court. Since the court's order granting the new trial makes no reference to them, we cannot consider them. Wheeler v. Wheeler, 37 Wash.2d 159, 222 P.2d 400 (1950)).

Early in January, 1962, appellant listed the Blue Ridge home for sale with a realtor at $55,000.

The trial court, after considering written briefs and argument of counsel, on January 19, 1962, entered the order appealed from, which is entitled 'Order Vacating Portions of Decree and Granting New Trial on Certain Issues.' This order states in detail the court's reasons for granting the motion, and, with the omission of the formal parts, we quote it in full:

'This matter having come on before the undersigned Judge sitting at Whitman County, Washington, under the provisions of Rule 63.04W, the undersigned having been the Judge who tried the above-entitled cause in Seattle, Washington on December 13, 14 and 15, 1961, and who signed Findings of Fact and Conclusions of Law on December 27, 1961 which said Findings of Fact and Conclusions of Law were filed in King County on December 28, 1961, and upon the motion of the defendant herein for a new trial which said motion was served and filed December 29, 1961 and based upon the provisions of RPPP 59.04W, the Court having considered the affidavit of the defendant and the written briefs and argument of counsel, does set forth the following reasons and findings in support of this within order granting a motion for new trial in part and vacating certain portions of the abovementioned decree;

'IT APPEARING that on December 28, 1961, the day the decree herein was filed, the plaintiff Ingeborg Rock and one Walter S. John did procure a license to wed and in fact were wed on the 28th of December 1961; and 'IT FURTHER APPEARING that the plaintiff's intention is to move away from Seattle, to Oregon, with the family, to reside with said Walter S. John all in contradiction of her testimony given at trial of this matter; and

'IT FURTHER APPEARING that the home of the parties, which had been awarded to the plaintiff has been listed for sale despite her testimony that she wanted to retain it for the benefit of the children of the parties who had become accustomed to the schools, the surroundings, their playmates in the neighborhood; and

'IT RURTHER APPEARING that said Walter S. John and Ingeborg Rock had the intent to wed and to move plaintiff from the Seattle area for some considerable time prior to the trial of this cause, in contradiction of the testimony of the plaintiff at the time of trial; and

'IT FURTHER APPEARING that the plaintiff herein, by her testimony and conduct with regard to her intention to reside in the Seattle area, and her testimony of her intention to retain the house for the benefit of the children as aforesaid was a deliberate concealment of her true intentions or an unfair suppression of this intent designed to mislead the defendant, counsel and the Court to advance her pecuniary interests, amounting to an irregularity in the proceedings of the adverse party plaintiff by reason of which the defendant was prevented from having a fair trial, further amounting to misconduct of the prevailing party plaintiff, and that the new marriage and listing of the home for sale produced an accident or surprise against the defendant which he could not, with ordinary prudence guard against;

'IT FURTHER APPEARING that the immediate remarriage of the plaintiff and the listing of the house for sale is newly discovered evidence material for the defendant, which he could not with reasonable diligence, despite having taken depositions and submitted interrogatories, have discovered and produced at the trial and further that:

'1. The new evidence will probably...