Shibley v. Shibley, 25308.

• Decision Date: 19 March 1935
• Docket Number: 25308.
• Citation: 42 P.2d 446,181 Wash. 166
• Parties: SHIBLEY v. SHIBLEY.
• Court: Washington Supreme Court

42 P.2d 446

181 Wash. 166

SHIBLEY v. SHIBLEY.

No. 25308.

Supreme Court of Washington, En Banc.

March 19, 1935

Appeal from Superior Court, King County; Roscoe R. Smith, Judge.

Action by Marion Bovard Shibley against Kenneth Shibley. From a judgment dismissing the action with prejudice, plaintiff appeals.

Reversed and remanded, with directions.

Bausman Oldham, Cohen & Jarvis, of Seattle, Livingston & Livingston of San Francisco, Cal., and Simon Wampold, Jr., of Seattle for appellant.

Kahin &amp Carmody, of Seattle, for respondent.

MITCHELL Justice.

In a separate maintenance action brought by Marion Bovard Shibley against Kenneth Shibley in the superior court in and for the county of San Francisco, Cal., both parties appearing therein, a decree was entered in August, 1929, which among other things, ordered the defendant to pay the plaintiff $500 per month for the maintenance of the plaintiff and the minor children of the plaintiff and the defendant. Thereafter, in 1931, upon stipulation of the parties, a modified decree was entered by which the monthly payments were reduced to $400, 'beginning as of January 1, 1930.' It was further provided in the modified decree that certain stock standing in the name of the defendant issued by a California corporation should be deposited in a given bank in escrow upon specified conditions as security for the monthly payments due the plaintiff, but providing, in that respect, that the remedy by and against such security 'shall be cumulative and not exclusive.'

The present action was commenced by the plaintiff against her husband in the superior court for King county wherein, by an amended complaint, after setting up the action and modified decree in the California court, the alleged that monthly payments were made to her until and including March 1, 1932, since which date no payment has been made. She demands judgment for the amount already due and owing under the modified decree, and also prays that the judgment of the California court be established here as a foreign judgment to be enforced in equity by contempt proceedings, if necessary, as is usual in such cases, and she prays for such further relief as may be proper.

The defendant appeared by answer denying essential allegations of the amended complaint.

Upon the trial, judgment was entered dismissing the action with prejudice. The plaintiff has appealed.

In an oral decision at the close of the hearing, it was held that, because the modified judgment entered in 1931 changed the amount of monthly payments from $500 to $400 and related back in that respect for one year or to January 1, 1930, therefore the modified judgment was not final as to past-due installments, but that the same might be changed from time to time by the court, and that, since it was not final in the California courts, it was not final here, in the sense that it could be enforced in the courts of this state. We do not so understand the modified judgment. Clearly, the reduction made by the modified judgment in the amounts already due and unpaid was made not because of any power in the court to do so except upon stipulation of the parties. The trial court further held that suit could not be maintained in the courts of this state until the stock deposited as security was first exhausted. There was no agreement between the parties to that effect, and, to the contrary, the judgment provided that the right or remedy to exhaust the stock placed in escrow shall be 'cumulative and not exclusive.'

The modified decree as a fact was fully proven. Its terms and provisions were not disputed. Respondent does not deny, by his pleading or otherwise, the allegation in the present action that he has made no payment since March 1, 1932.

To prove the law of California upon the subject of the power of the courts of that state to modify or reduce amounts already accrued and past due under judgments of this kind, it was stipulated, as stated by counsel for respondent at the trial: 'We have stipulated that the cases to which we call your Honor's attention may be considered by your Honor as determining what the California law is.' Accordingly, appellant listed the following California cases: Cummings v. Cummings, 97 Cal.App. 144, 275 P. 245, 246; Rinkenberger v. Rinkenberger, 99 Cal.App. 45, 277 P. 1096, and Bruton v. Tearle, 117 Cal.App. 696, 4 P. (2) 623.

The following California cases were furnished by the respondent: Wolff v. Wolff, 102 Cal. 433, 36 P. 767, 1037; Lynch v. Lynch, 69 Cal.App. 66, 230 P. 462; Smith v. Superior Court, 89 Cal.App. 177, 264 P. 573; Booth v. Booth, 100 Cal.App. 28, 279 P. 458; Johnson v. Johnson, 104 Cal.App. 283, 285 P. 902; Willen v. Willen, 119 Cal.App. 483, 6 P.2d 554; Wilder v. Wilder, 214 Cal. 783, 7 P.2d 1032; Bechtel v. Bechtel, 124 Cal.App. 617, 12 P.2d 970.

The cases relied on by the appellant clearly announce the rule, applicable in California, as set out in Cummings v. Cummings, supra, as follows: 'A judgment for alimony is not subject to modification as to sums already accrued and past due. This is the law of California and New York. Soule v. Soule, 4 Cal. App. 97, 87 P. 205; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1001, 1061 [see, also, Rose's U.S. Notes].'

The cases cited by the respondent are not to the contrary. As we understand them, not one of them holds that a periodic allowance fixed by the court may be modified by the court after the amount has accrued and is owing. Indeed, counsel for respondent in his brief says Smith v. Superior Court, supra, is the most direct authority of all cases cited upon the question involved. Yet, as we read that case, the nearest approach it makes to the present question was to hold that a provision in an interlocutory decree of divorce upon the subject of allowance for alimony only during that period does not bar the court from providing in the final decree a different amount as to permanent alimony commencing after the expiration of the time covered by the allowance in the interlocutory decree.

The California cases upon the subject in question show that the law in that state is the same as it is in this state, as set out in Phillips v. Phillips, 165 Wash. 616, 6 P.2d 61, as follows:

'As to installments of alimony 'the rights and liabilities of the parties become absolute and fixed at the time provided in the decree for their payment, and to this extent the judgment is a final one.' Harris v. Harris, 71 Wash. 307, 128 P. 673, 674; Beers v. Beers, 74 Wash. 458, 133 P. 605.

'The party to whom such payments are to be made has to the extent of alimony due and unpaid, such an interest therein that the court has no power to take it away. Beers v. Beers, 74 Wash. 458, 133 P. 605; Selvin v. Selvin, 135 Wash. 186, 237 P. 304; Kinne v. Kinne, 137 Wash. 284, 242 P. 388; Rehberger v. Rehberger, 153 Wash. 591, 280 P. 8; Boudwin v. Boudwin, 159 Wash. 262, 292 P. 1017.'

Plaintiff is entitled to recover in this case for the amount already accrued and due according to the allegations of her complaint, the judgment to provide for its enforcement as a judgment or decree in equity. We adopt this procedure, not on account of the rule of comity enjoined by the full faith and credit clause of the Federal Constitution, but because, as a matter of public concern and equitable power, the enforcement in this state of such decrees for alimony and support money should not depend solely upon ordinary execution, but that the common practice in this state with respect to all the remedies for the enforcement of such decrees as if originally entered here should be followed and enforced.

In this regard, we adopt the rule and reason announced by the Mississippi, California, and Minnesota courts, among others: In Fanchier v. Gammill, 148 Miss. 723, 114 So. 813, 814, a suit was brought in equity to enforce a decree for alimony rendered in Nevada. A demurrer was sustained to the bill on the ground of lack of jurisdiction because the decree of the Nevada court amounted to no more than a judgment at law. In reversing the judgment, the Supreme Court, upon reviewing the authorities on the subject, said:

'We have tried to carefully review these decisions and determine which we think would be the better rule to announce as the law in our state, and we have come to the conclusion that a decree for alimony granted by a foreign court may be established and enforced by and through the equity courts of our state, and that our equity courts may assume jurisdiction of the alimony decree and establish and enforce it, and that therefore the decree of the chancery court sustaining the demurrer to the bill herein was error which must result in reversal.

'It is our view that, on account of the character of a judgment for alimony, which rests, to some extent, upon public policy, in requiring a husband to support his wife and children, due to the sacred human relationship, and that they may not become public charges and derelicts, the decree for alimony, with the extraordinary power of enforcement by attachment and contempt proceedings, should be established and enforced by our equity court, which has full and sole jurisdiction of all matters of divorce and alimony; because to hold that a foreign judgment for alimony can be enforced in this state only by execution, the same as judgments at law, would be to impair or to deprive a foreign judgment for alimony of its inherent power of enforcement by attachment and contempt proceedings. * * *

'There can be no sound reason for such a view. We should not hold that all foreign judgments are alike when it comes to enforcing them in our state, and that execution on a judgment at law is the only method that can be prosecuted,...