Schumacher v. Schumacher

• Decision Date: 19 September 1946
• Docket Number: 29882.
• Citation: 26 Wn.2d 23,172 P.2d 841
• Parties: SCHUMACHER v. SCHUMACHER.
• Court: Washington Supreme Court

172 P.2d 841

26 Wn.2d 23

SCHUMACHER v. SCHUMACHER.

No. 29882.

Supreme Court of Washington

September 19, 1946

Department 1

Divorce action by Marie K. Schumacher against A. B. Schumacher. The plaintiff was awarded a divorce, custody of a minor child and for the support of the child a monthly sum which was subsequently reduced. The plaintiff obtained an order requiring the defendant to show cause why delinquent support payments should not be paid immediately or defendant be adjudged in contempt of court. From a judgment dismissing the order to show cause, the plaintiff appeals.

Affirmed.

Appeal from Superior Court, Pierce County; F. G. Remann, judge.

Newton C. McCoy, of Seattle, for appellant.

Roswell J. Quinn, of Tacoma, for respondent.

MILLARD Justice.

Plaintiff who married defendant October 16, 1923, instituted an action in Pierce county superior court in March, 1936 for divorce from defendant. Trial of that action resulted in entry of final decree November 10, 1936, confirming interlocutory order entered March 24, 1936, which awarded a divorce by default to plaintiff who was also awarded custody of the minor child of the parties. The decree required the father to pay to the mother 'the sum of $30.00 per month as and for the care and support of the minor child of the parties.'

Defendant was delinquent several times in payments for support of the child. An order was entered May 4, 1937, in hearing on order to show cause, which absolved defendant of charge of contempt and required him to resume payment of $30 monthly to plaintiff as soon as labor conditions became normal, for the maintenance of the child, and pay a reasonable sum each month upon the amount ($110) remaining unpaid, pursuant to former order of the court.

An order entered August 31, 1937, required defendant to pay $30 monthly to the then attorney of plaintiff until she completed her nursing course. At that time the court found defendant had not complied with former order of the court to pay $30 monthly but that for past several months he had paid $20 monthly to plaintiff. As a result of defendant's continued delinquency in making payments for support of the minor child the court entered an order November 16, 1938, finding defendant guilty of contempt and requiring him to pay on or Before December 1, 1938, to the clerk of the superior court for the benefit of plaintiff the sum of $10, and the further sum of $20 Before January 1, 1939, and thereafter pay to the clerk of the court $15 on the first and fifteenth of each and every month, beginning January 1, 1939, until the further order of the court. By the court's order the clerk of the court was authorized and directed to deliver the payments so received to plaintiff or to her then attorney.

Hearing on defendant's petition therefor, filed February 2, 1939, resulted in entry February 10, 1939, of an order which modified and aended the interlocutory order entered March 24, 1936, 'in such manner that same shall provide that the defendant shall pay to the clerk of this court for the maintenance of said child,' $10 on the first and fifteenth days of each calendar month thereafter until the minor child of the parties attained the age of six years and entered school; and thereafter pay to the clerk of the court $12.50 on the first and fifteenth days of each and every calendar month until the child 'has finished high school or ceases to go to school, or until the further order of the court.'

On the alleged groudn of delinquency in support payments plaintiff obtained August 24, 1945, a temporary restraining order and show cause order which restrained defendant from disposing of his property and required him to show cause why he should not immediately pay $830 to plaintiff or be adjudged in contempt of court. The defenses interposed were payment to date of all judgments, aggregating $1,740, awarded plaintiff under the order entered February 10, 1939, and that the amounts due to plaintiff prior to entry of the modifying order of February 10, 1939, were barred by the statute of limitations. The trial court held that payments had been made in full by defendant as required by the order entered February 10, 1939, 'that the defendant is not in contempt of court,' and that the judgments due to plaintiff prior to entry of order February 10, 1939, were barred by the statute of limitations. An order was entered November 5, 1945, setting aside the restraining order and dismissing the order to show cause. Plaintiff appealed.

Since entry of the order February 10, 1939, to date, respondent has paid on the dates designated the specified amounts to the clerk of the superior court for Pierce county as required by the order. Even so, contends appellant, those payments should have been applied only on the judgment itself as a whole and to the oldest payments then delinquent under the order entered March 24, 1936.

Each payment respondent was ordered to make under the 1936 interlocutory order and final decree of divorce for the support of his minor child constituted, as it became due, a judgment. Boudwin v. Boudwin, 159 Wash. 262, 292 P. 1017; St. Germain v. St. Germain, 22 Wash.2d 744, 157 P.2d 981; Herzog v. Herzog, 23 Wash.2d 382, 161 P.2d 142. As each separate installment awarded by a divorce decree for support of a minor child of the parties constitutes a judgment as it becomes due, there can be no basis for a proceeding to enforce its collection if such proceeding is commenced six years after the installment is due. Boudwin v. Boudwin, supra; Herzog v. Herzog, supra; Rem.Rev.Stat. § 459.

The show cause order obtained by appellant August 24, 1945, was more than six years subsequent to any judgment which could accrue under the 1936 order or any modification of that order until the order entered February 10, 1939.

We concur in the view of the trial court as to the unsoundness of argument that in this proceeding more than six years after entry of the 1939 order, appellant may collect the support money due at that time. It is not a tenable claim that the payments, made in strict compliance with the order entered February 10, 1939, should be applied to anything other than the continued support of the minor child of the parties from date of entry of that order.

Respondent complied in every respect with the order of 1939, which modified the original decree as to the amount of future payments and as to place of payment. The 1939 order required payment to the clerk of the court. In receiving the payments, the clerk was bound by the order to credit them to the payments provided by the order.

The judgment is affirmed.

BEALS, C.J., and SIMPSON and MALLERY, JJ., concur.

STEINERT Justice (concurring in the result).

I agree with the result reached by the majority in this case, but have arrived at my conclusion for reasons different from those expressed in the majority opinion.

The order of February 10, 1939, modifying the decree and fixing the amount of the monthly payments at twenty dollars, made no provision that such payments should in any part be applied to delinquent installments. In the light of the circumstances of this case, I think both respondent and appellant would be fully justified in assuming that the payments provided for were directed to current support for their daughter. Cf. Phillips v. Phillips, 165 Wash. 616, 6 P.2d 61. If appellant intended to enforce payment of these past delinquencies, it was incumbent upon her to assert her rights in that respect within a reasonable time, or else be deemed guilty of laches.

It will be observed that this case arose on an order to show cause why respondent should not be adjudged in contempt of court. This is, of course, an equitable proceeding, subject to equitable defenses and invoking the discretion of the court. The test to be applied in such cases is whether there was a wilful and intentional failure to comply with the court's order. Stuart v. Stuart, 130 Wash. 68, 226 P. 133.

Where the injured wife has long acquiesced in some new, although less favorable, arrangement for alimony or child support, the courts have not been disposed to enforce old delinquencies against the former husband. Wolfe v. Wolfe, 203 Ill.App. 188, 24 N.E.2d 871; Risko v. Risko, 136 N.J.Eq. 93, 40 A.2d 545; Thompson v. Thompson, 197 A.D. 228, 188 N.Y.S. 785; Parker v. Parker, 189 A.D. 603, 179 N.Y.S. 51. As was said in McKee v. McKee, 154 Kan. 340, 118 P.2d 544, 547, 137 A.L.R. 880, '* * * payment of the lump sum now demanded is quite a different thing from payment of $10 a month. Furthermore, in the light of all the circumstances, it is obvious that appellant's situation as it relates to possible modification of the order has been altered to his detriment by appellee's acquiescence and long silence. The doctrine of laches being equitable in character, all facts and surrounding circumstances are to be considered in determining its applicability. We think it would be clearly inequitable, under the instant facts, to permit any recovery by appellee.'

The view of the English ecclesiastical courts was that arrears beyond one year would not be enforced without sufficient cause being shown for the delay. De Blaquiere v. De Blaquiere, 3 Hagg.Eccl.Rep. 322, 162 Eng. Reprint 1173. The sentiment against equitable enforcement of old arrearages of alimony or support money is carried into numerous American cases. Montgomery v. Offutt, 136 Ky. 157, 123 S.W. 676; Franck v. Franck, 107 Ky 362, 54 S.W. 195; Hollis v. Bryan, 166 Miss. 874, 143 So. 687; Commonwealth ex rel. Morse v. Glasgow, 132...