Sanges v. Sanges
| Decision Date | 28 December 1953 |
| Docket Number | No. 32599,32599 |
| Citation | 44 Wn.2d 35,265 P.2d 278 |
| Parties | SANGES, v. SANGES. |
| Court | Washington Supreme Court |
Hardy & Gaskill, Seattle, for appellant.
John P. Mucklestone, Seattle, for respondent.
Is it an abuse of discretion for the trial court to modify a decree of divorce and relieve the husband from paying support money for a child, so long as his former wife violates the specific terms of the decree restraining her
'* * * from removing said child from King County, Washington without the written consent of the defendant [husband] or by order of this Court, except for an occasional visit * * *'?
The parties were divorced October 17, 1952. The wife was given permanent custody of their minor daughter and a judgment against the husband for sixty dollars per month support money for the child. The husband was given the right to visit the child at all reasonable and proper times and places.
In November, 1952, the wife moved to California and took the child with her. December 1, 1952, by registered letter, the husband's counsel demanded that the wife return the child to King county. The demand was ignored. The husband filed a petition to modify the decree of divorce. By counsel, the wife made a general appearance. She did not request that the decree be modified in any respect; she asked that it be enforced. On May 8, 1953, after hearing upon the husband's petition, the trial court modified the decree of October 17, 1952 '* * * by adding thereto to the provision requiring the defendant [husband] to pay the sum of $60.00 per month as support money for the minor child of the parties that the defendant shall be and is relieved of the payment to the plaintiff [wife] of any support money for the minor child of the parties hereto as long as the plaintiff violates the said decree by removing and keeping said child from King County, Washington, without the written consent of the defendant [husband] or by order of this Court except for an occasional visit, commencing with the month of March, 1953.'
The wife appeals from the order modifying the decree of divorce.
A change of residence of a child, by a parent to whom custody has been awarded, is not a violation of a decree awarding visitation rights to the other parent, in the absence of a decretal prohibition to the contrary, Lear v. Lear, 1948, 29 Wash.2d 692, 699, 189 P.2d 237; and liability for support money payments is not contingent upon the continued, convenient exercise of the right of visitation. Lear v. Lear, supra; Wheeler v. Wheeler, 1950, 37 Wash.2d 159, 166, 222 P.2d 400.
When the divorce decree prohibits the one to whom custody has been given from changing the residence of a child, or prohibits moving the child from a certain area without the consent of the court, we have, on various occasions, sanctioned or authorized the removal of the prohibition. Kirby v. Kirby, 1923, 126 Wash. 530, 219 P. 27; Jeschke v. Jeschke, 1943, 16 Wash.2d 617, 134 P.2d 464; Goade v. Goade, 1944, 20 Wash.2d 19, 145 P.2d 886. We have also approved the trial court's refusal to remove such a prohibition. Wells v. Wells, 1953, Wash., 261 P.2d 971.
These cases were based upon the doctrine that the welfare of the child concerned was the primary objective to be attained, a doctrine which this court has frequently affirmed. It may be the touchstone by which all these cases are tested, but it does not automatically become the controlling doctrine until evidence is produced which requires its application.
The record before us does not place in issue the welfare of the child. Appellant has chosen to produce no evidence. There is no showing that the child will suffer hardship as a result of the trial court's modification of the divorce decree. There is no showing that appellant is unable to meet her obligation to support, protect, and educate the minor; and obligation which our law casts equally upon both parents in the absence of a decree such as exists in this case....
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Marriage of Shoemaker, In re
...v. Wilburn, 59 Wash.2d 799, 801-02, 370 P.2d 968 (1962); Koon v. Koon, 50 Wash.2d 577, 579, 313 P.2d 369 (1957); Sanges v. Sanges, 44 Wash.2d 35, 38-39, 265 P.2d 278 (1953); McGrath v. Davis, 39 Wash.2d 487, 489, 236 P.2d 765 (1951); Kinne v. Kinne, 137 Wash. 284, 242 P. 388 (1926); Beers v......
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...of Washington is that accrued installments of support money are vested and may not be retrospectively modified. Sanges v. Sanges, 44 Wash.2d 35, 38, 265 P.2d 278; McGrath v. Davis, 39 Wash.2d 487, 236 P.2d 765; Pishue v. Pishue, 32 Wash.2d 750, 753, 203 P.2d 1070; Kinne v. Kinne, 137 Wash. ......
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...or that the child was in need. Under such circumstance the court did not consider the child a party to the proceedings. In Sanges v. Sanges, 44 Wash. 35, 265 P.2d 278, the court upheld an order relieving the former husband from requirement to pay support money while the former wife continue......