Schorno v. Schorno
| Decision Date | 14 September 1946 |
| Docket Number | 29912. |
| Parties | SCHORNO v. SCHORNO. |
| Court | Washington Supreme Court |
Department 1
Action for divorce by Helen R. Schorno against Walter Schorno. Decree for plaintiff, and, from an order modifying the decree by awarding defendant permanent custody of the parties' minor sons, plaintiff appeals.
Reversed with instructions.
Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.
Burkey & Burkey and S. J. O'Brien, all of Tacoma, for appellant.
Eisenhower Hunter & Ramsdell, of Tacoma, for respondent.
The parties to this action intermarried August 10, 1936. Helen Schorno was then nineteen years of age and her husband thirty. Mr. Schorno was born in Switzerland, where he was educated at an institution probably the equivalent of an agricultural college. He came to the United States in 1927, and was admitted to citizenship in 1938. The couple operated a dairy farm, where they established their residence, near the town of McKenna. Two children were born, Walter, April 21, 1938, and Albert, August 16, 1939.
Mrs. Schorno having brought a suit for divorce, an interlocutory order was entered in the action November 21, 1941, awarding Mrs. Schorno a divorce, together with the custody of the children and sixty dollars per month for her and their support. No appeal having been taken by either party, on Mr. Schorno's application, a final decree of divorce was entered June 6, 1942. Mr. Schorno remarried two days after the entry of the final decree, and has one child by his second wife. He has continued to live on the dairy farm, and has very greatly increased its scope, value and activities.
At the time of the divorce, the parties owned a large dairy farm (respondent now owning six hundred acres) upon which were located the necessary buildings and equipment. They also owned over a hundred head of blooded cattle, including some sixty milch cows, and operated a milk route. Mr. Schorno having testified that he was indebted in an amount exceeding his assets, the trial court, having accepted his testimony as true, awarded all the property owned by the parties to Mr. Schorno, he agreeing to pay all the community indebtedness. Mrs. Schorno was awarded a few items of personal property, respondent to pay for furniture selected by her up to two hundred dollars in value. The interlocutory order contained the following provisions:
'2. She is hereby awarded the care, custody and control of Walter Schorno and Albert Schorno, minor children of the parties hereto, subject to the right of the defendant to have them with him over the week-end twice a month, beginning with the 6th day of December, 1941, and for one month during the summer, until the children become of school age when he shall have the right to have the children during the school recess periods, except that the plaintiff may have the children on Thanksgiving Day in the even years and on Christmas Day in the odd years. That in the bi-monthly period when the defendant shall have the children, unless he has a conveyance of his own, they may be taken on the return trip of one of the defendant's trucks on Saturday afternoon, and returned to the plaintiff by said truck on the following Monday morning, but that otherwise they shall be returned on Sunday evening in time for their ordinary bedtime, and the plaintiff shall have the children ready to be taken by the defendant at the time herein specified; unless otherwise agreed upon the defendant shall have the children during the month of July. The custody of the children and the rights of the parties hereto shall be subject to the further order of the court. That the plaintiff is not to remove the children from Pierce County without the further order of the court, but shall not be prevented from taking them out of the county temporarily by way of diversion or pleasure. The defendant is ordered to pay to the plaintiff for her support and for the support of said minor children the sum of $60.00 per month, subject to the rights of the court to change said amount, should conditions warrant, and the said amount to be reduced to $35.00 per month during summer vacation while children are with the defendant * * *.' While the parties were living together, both worked diligently on the farm. Mrs. Schorno cooked, often for as many as six men. She also accomplished the family washing and ironing. She sometimes operated a tractor in the harvest field, and, when Mr. Schorno was ill, carried on his milk route. In addition, of course, she cared for the children, being most of the time without domestic assistance.
The property settlement made by the court left Mrs. Schorno with nothing, and with no chance of obtaining any benefit from any increase in value of the property. Her work and physical labor for five years had been devoted to the benefit of the community, but the interlocutory order deprived her of all possibility of realizing anything as the result of her efforts.
The trial judge who heard the action for divorce had no criticism of Mrs. Schorno's moral character, nor did the court express any doubt in awarding to her the custody of the children. In making the award, the court expressed the thought that appellant should personally care for the children, realizing at the same time that this would prevent her from accepting employment elsewhere.
Mrs. Schorno rented a remodeled, two-car garage near Tacoma, into which she moved with her children, paying twenty dollars a month rental. Finding that this was more than she could afford, she obtained another small house, for which she paid ten dollars a month.
During the month of May, 1942, prior to the entry of the decree of divorce, Mr. Schorno filed in the cause a petition asking that the interlocutory order be modified by awarding custody of the children to him. Mrs. Schorno field a cross-petition asking for an increase in the monthly allowance. By order entered June 30, 1942, after the entry of the decreed of divorce, the trial court modified the order establishing the custody of the children by granting Mr. Schorno their custody during the months of July and August of each year. It may be noted that this order purported to modify the interlocutory order, which had already been merged into the final decree.
After several months in a vain attempt to live and support her two children upon the amount she was receiving from Mr. Schorno, and when, in March, 1943, she was required to vacate the house in which she had lived with her children, she asked Mr. Schorno if he would increase the payments made to her, and upon his refusal asked if the children could be placed with him temporarily, to which he agreed. Mr. Schorno denied that his custody of the children was to be temporary. She then went to work as an electrician's helper in one of the shipyards, renting quarters at a government housing project. She requested Mr. Schorno to bring the children to her for occasional visits. Much friction having resulted between the parties, Mr. Schorno being extremely unco-operative, September 2, 1944, Mr. Schorno again petitioned for a modification of the decree, and asked that he be awarded permanent custody of the children.
Mrs. Schorno contested the petition, asked for custody of the children and for an increase in the monthly allowance for their support, so that she could leave her position in the shipyard and devote her entire time to her sons. After a hearing held in September, 1944, it appearing that the elder boy had started school at McKenna, the court postponed decision of the matter until the following June. In July, 1945, the matter was again brought to the attention of the court by a petition filed by Mrs. Schorno.
Schorno again petitioned for the custody of the children, and, after an extended hearing, the court entered an order awarding Mr. Schorno the permanent custody of the boys, they to visit their mother three designated days each month, from which order Mrs. Schorno has appealed.
Appellant assigns error upon the modification of the provisions of the interlocutory order to respondent's benefit, upon refusal of the trial court to award to her permanent custody of her children with an adequate allowance, and upon the refusal of the court to allow her reasonable attorneys' fees.
The record shows many disagreements and disputes between the parties to this proceeding, it being evident that respondent was often arbitrary and unreasonable. Respondent contends that appellant showed little maternal interest in her children; and, on the other hand, contends that he and his present wife are devoted to the children and desire their custody. We are convinced that both parties are attached to the children.
An examination of the record discloses that appellant at all times was devoted to her sons and did everything she could to promote their welfare. The amount of the allowance which she received from respondent for her support and that of the children was utterly inadequate, particularly after the breaking out of the war caused greatly increased costs of living. Respondent contended that he could pay no more, and the trial court did not increase the award. Respondent's admitted financial condition as of November, 1944, certainly indicates that either he was extremely fortunate during the previous year or two, or that he was not candid in his testimony at the time of the trial of the divorce action and at later hearings.
It is evidence that respondent is an extremely intelligent, efficient and industrious dairy farmer, for which he, of course, deserves due credit.
Respondent, at the hearing held September 21, 1944, cross-examined as to his financial situation, testified as follows:
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