Ruge v. Ruge

• Decision Date: 19 June 1917
• Docket Number: 13681.
• Citation: 165 P. 1063,97 Wash. 51
• Parties: RUGE v. RUGE.
• Court: Washington Supreme Court

165 P. 1063

97 Wash. 51

RUGE v. RUGE.

No. 13681.

Supreme Court of Washington

June 19, 1917

Department 1. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Suit for divorce by Elsie G. Ruge against Edward C. Ruge, in which there was a decree granting an absolute divorce and permanent alimony payable in monthly installments. On petition by the husband to obtain an order modifying the decree for alimony. From a judgment sustaining a demurrer to the petition and dismissing it, the petitioner appeals. Affirmed.

Chadwick J., dissenting.

S. M Bruce and Romaine & Abrams, all of Bellingham, for appellant.

Craven & Greene, of Bellingham, for respondent.

WEBSTER J.

This is an appeal from an order and judgment sustaining a demurrer to and dismissing a petition the purpose of which was to obtain an order modifying a decree for alimony payable in periodical installments as fixed by a decree of divorce rendered in an action between the parties to this proceeding by the court to which the petition was addressed. The material facts are as follows:

On November 16, 1912, a decree was rendered by the superior court of Whatcom county dissolving the bonds of marriage theretofore existing between plaintiff and defendant and adjudging, among other things, that the defendant and petitioner pay to the plaintiff as alimony the sum of $125 per month so long as the plaintiff should live. The decree was based upon findings to the effect that the defendant had been guilty of cruelty toward the plaintiff; that he was a regularly licensed physician with a lucrative practice, and was actually earning from $500 to $1,000 per month; that plaintiff was physically frail and delicate and would never be well and strong; that she was not able to support or maintain herself by her own exertions; and that she was totally without means of support. On February 23, 1915, the defendant filed a petition entitled in the original cause, wherein he alleged in substance that since the entry of the decree in the divorce action the plaintiff had become well and vigorous; that his practice as a physician had materially fallen off; that business conditions had greatly changed; and that he was not financially able to pay the installments of alimony. He prayed that the amount of alimony be reduced; that the same be converted into a gross sum to the end that he might pay the same either at one time or at such periods and in such installments as the court saw fit to provide. It is conceded that there were no children as the result of the marriage between plaintiff and defendant, and there is no reservation or provision in the decree whereby the allowance of alimony is subject to the further orders of the court.

To this petition the plaintiff interposed a demurrer upon the grounds, among others, that it did not state sufficient facts to entitle defendant to the relief prayed, and that the court was without jurisdiction to entertain it. The demurrer was sustained, and, the defendant electing to stand upon his petition, the same was dismissed. Defendant appeals.

The question presented for our consideration is this: Has the superior court which rendered the decree in the divorce action jurisdiction to modify the same in respect to the periodical installments of permanent alimony provided for therein, the divorce being an absolute one, there being no minor children of the parties, there being no provision in the decree reserving to the court the power to subsequently make further orders relating to the alimony, but being absolute and final upon its face, there being no statute in this jurisdiction expressly or by necessary implication conferring upon the court the power to change or modify decrees in such cases to meet altered conditions, the defendant not having appealed from the decree nor moved or petitioned the court for its modification within the time limited by statute, and the decree not being attacked on the ground of fraud or mistake.

The question thus presented is one of first impression in this court, is exceedingly vexatious, and one upon which the authorities are in an unsatisfactory condition. Because of the great importance of the question not alone to the defendant in this case, but to the public as well, and in the hope of bringing something approximating order out of the chaotic mass of judicial expression upon the question, we have made a painstaking examination of the authorities. From our investigation we are induced to conclude that what at first blush appears to be a hopelessly entangled skein of discordant and conflicting cases upon closer analysis will be found not to be such, but that, by resorting to scientifically sound fundamental principles and by keeping in mind well-established lines of demarcation, the question is one upon which there is not great actual conflict. Upon careful analysis the cases seem naturally to arrange themselves into six well-defined and distinct classes, each class being based upon sound fundamental principles and the rule pertaining to it being the result of clear logic. These classifications are as follows:

I. Where the decree in the main action is one granting a divorce a mensa et thoro, which in modern parlance we refer to as a decree for separate maintenance. Cases falling within this class are controlled largely, if not entirely, by the thought that, inasmuch as the power of the court to award alimony in such cases is a power incident to the jurisdiction to regulate the rights of the parties growing out of and pertaining to the marital status, and this status being unaffected by the decree for legalized separation, but continuing to exist, the power to modify the decree in respect to alimony to meet changed or changing conditions likewise continues to endure. This rule seems to have had its origin in the ecclesiastical courts, where absolute divorces were never granted. These tribunals sometimes entered decrees of annulment for causes which rendered the marriage void ab initio, but such decrees were not in the proper sense of the term divorces; they amounted merely to an official declaration of a pre-existing fact, viz. that there had never been a valid marriage between the parties. Absolute divorces were infrequently granted in England by acts of Parliament, and hence it is that the granting of such divorces is historically a legislative function. While inherently the matter of granting a divorce involves the judicial process, historically and theoretically the power to grant a divorce a vinculo is purely legislative. Consequently there is no inherent jurisdiction in the common-law courts to grant a divorce absolutely severing and canceling the marital bonds; but they have only such power with respect to granting absolute divorces as the legislative department in the particular jurisdiction sees fit to expressly confer upon them, or such as are necessarily implied from those expressly given them. In an early English case, however, after careful consideration and debate, it was determined that the rules announced and acted upon by the ecclesiastical courts were part and parcel of the common law. In cases of divorce from bed and board, therefore, the courts of the common law exercising the powers formerly exercised by the ecclesiastical courts have authority to modify decrees relating to alimony. The continued existence of the status of marriage upon which the power to grant decrees of alimony depends carries with it the continuing power to modify or alter the allowance of alimony to meet new conditions.

II. The second class includes the cases where the alimony awarded is temporary or pendente lite, as distinguished from permanent. In these cases the power to modify exists for reasons which are perfectly obvious. While the cause is still pending in the court of first instance the power to made any appropriate order in the premises clearly exists. The court has the same power to modify its order with respect to temporary alimony that it has to make any other appropriate order in a case pending in court.

III. This class includes cases where there are minor children of the parties to the divorce action, and the courts of all the states are at one upon the proposition that, so far as the decree of alimony is for the benefit of the minor children of the spouses, the power to modify the decree continues so long as there are minor children under the protection of the court. While in cases dealing with this aspect of the question the courts have not always paused to state the fundamental principle upon which the right to modify is based, it is manifest in reading them that the dominant thought and controlling circumstance in the cases is the fact that there are minor children to be cared for as wards of the court. As it seems to us, the true basis upon which the power to modify the decree in these cases rests is that out of the marital relation springs a new relationship, viz. that of parent and child. Palpably neither executive edict, enactment of Legislature, nor decree of court can change the relationship existing between parent and child. The courts may decree that the marital tie shall be absolutely severed and the parties be placed, so far as the law is concerned, in the same situation that they occupied prior to the solemnization of the marriage ceremony; but they cannot alter or modify the fact that a father is the parent of his offspring. This parental relationship springing as it does from the relationship of marriage is to this extent incident to the marital status. But the duty of the father, if he has means with which to do so, to support his infant children springs immediately from the parental relationship. As this relationship, incidental as it is to the marriage state, continues to...