St. Germain v. St. Germain

• Decision Date: 10 April 1945
• Docket Number: 29517.
• Citation: 157 P.2d 981,22 Wn.2d 744
• Parties: ST. GERMAIN v. ST. GERMAIN.
• Court: Washington Supreme Court

157 P.2d 981

22 Wn.2d 744

ST. GERMAIN v. ST. GERMAIN.

No. 29517.

Supreme Court of Washington

April 10, 1945

Department 1.

Action by Verner St. Germain against Nancy St. Germain to restrain execution and to quash writ of garnishment on ground that plaintiff was no longer liable to the defendant for the support of their children in view of the defendant's marriage to another and the adoption of such children by the defendant and her new husband and the statute of limitations. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Appeal from Superior Court, Cowlitz County; J. E. Stone, judge.

W. H Sibbald, of Kelso, for appellant.

E. D Germain, of Longview, for respondent.

JEFFERS Justice.

In November, 1930, Nancy St. Germain, appellant, began an action for divorce in Cowlitz county against her husband, Verner St. Germain, respondent herein. At the time of the filing of the complaint the St. Germains had two children, LaVern, a girl, age four years, and Clyde, age two years. The cause came on for hearing Before the court on November 12, 1930, and on November 18, 1930, the court entered an interlocutory order granting plaintiff a divorce, awarding her the care and custody of the two minor children, with right of visitation to defendant; and ordering defendant to pay fifty dollars a month during each and every month for the care and support of the minor children.

On May 18, 1931, the court entered a final decree, wherein plaintiff was awarded the care and custody of the minor children and defendant was ordered to pay to plaintiff for the support of the minors the sum of fifty dollars a month on the first day of each and every month thereafter until further order of the court.

Some time after the entry of the final decree of divorce appellant married J. R. Edwards. In October, 1934, J. R. Edwards and wife petitioned the superior court for Cowlitz county to adopt LaVern and Clyde St. Germain and to change the name of the minors to Edwards. The petition came on for hearing Before the court, and, on October 26, 1934, an order of adoption was made and entered, which, in part, states:

' * * and it appearing satisfactorily to the court that said children were born in Cowlitz county, Washington, and ever since have been and now are residents of said county, and that the father of said children, said Verner Herman St. Germaine, has consented to the adoption of said children by said J. R. Edwards, by a duly executed consent filed in this court:

'And It Further Appearing That said J. R. Edwards and Nancy Edwards, as such husband and wife, have sufficient means and ability to care for, nurture and educate said minors and desire so to do, they being examined separate and apart,

'Now, Therefore, It Is Adjudged and Decreed that the said minor children, Luverne [LaVern] St. Germaine and Clyde St. Germaine, shall bear the name of said J. R. Edwards, and be known as Luverne [LaVern] Edwards and Clyde Edwards, and shall be, to all intents and purposes, the children of said Petitioners, J. R. Edwards and Nancy Edwards.'

On April 12, 1944, respondent herein, Verner St. Germain, filed in the case of St. Germain v. St. Germain, above referred to, what is termed a 'Bill in Equity,' wherein he referred to the interlocutory order of November 18, 1930, a true copy of which was attached to and made a part of the bill.

The bill alleged that Nancy St. Germain and J. R. Edwards had married and thereafter they petitioned for the adoption of the St. Germain children; that, as an inducement to Verner St. Germain to give his consent to such adoption, Mr. Sibbald, attorney for plaintiff in the divorce action and attorney for the petitioners in the adoption proceedings, wrote defendant a letter, wherein it was noted, in substance, that, if defendant would consent to the adoption, by such adoption all of his responsibilities for the support of the children would cease and he would be forever relieved from all further responsibility for their support or maintenance both as to past-due and future payments. It further alleged that, relying on the statements contained in the letter, respondent consented to the adoption, and the order hereinBefore referred to was entered on October 26, 1934.

The bill also alleged that, at all times since the order of adoption, the Edwards had kept the children in their household and had treated them as their own; that they never made any demand upon respondent for the support and maintenance of the children, or either of them, and had ignored the provisions of the interlocutory order for nearly ten years.

It further alleged that, on or about April 1, 1944, appellant caused to be issued in the divorce proceedings a general execution based upon the interlocutory order, claiming a balance due, unpaid, and owing of seven thousand eight hundred dollars, and caused the sheriff of Clark county to levy upon, seize, and take into possession and advertise for sale, the 1939 Pontiac sedan of respondent, and stated that the automobile would be sold at sheriff's sale on April 15, 1944, unless restrained by the court; that appellant also caused to be issued and served on Kaiser Company, Inc., of Vancouver, Washington, a writ of garnishment, seizing the wages of this respondent, and that the wages were being held under the garnishment and would be wrongfully applied to the satisfaction of the money claimed to be due under the interlocutory order unless restrained by the court.

It further alleged that no sums payable under the interlocutory order had become due or payable since the date of the adoption of the St. Germain minor children (October 26, 1934), and, if any sums were due and unpaid prior to the date of such adoption, the same were barred by the statute of limitations.

Appellant answered the bill in equity, admitting her marriage to Mr. Edwards, her divorce from respondent, the order for support money, the adoption of the St. Germain children by Edwards, with respondent's consent, and denied the other allegations of the bill; and particularly denied that there had been any release of respondent from the payments to be made under the decree of divorce.

On July 12, 1944, the matter came on for hearing Before the court. At the hearing only two witnesses were sworn, to wit, respondent and Mr. Sibbald. Mr. St. Germain's testimony generally supported the allegations of his bill in equity. The files in the St. Germain divorce proceedings and in the Edwards' adoption proceedings were admitted, with the exception of the papers touching the writ of certiorari.

Mr. Sibbald testified that he was the attorney for appellant in the divorce proceedings and attorney for the Edwards in the adoption matter. He further testified to the interlocutory order in the divorce proceedings and the final decree entered May 18, 1931, and that between 1931 and 1944 no action was taken to collect the money now claimed to be due for the support of the St. Germain children under and by virtue of the divorce decree. He denied that he had ever made any promises to respondent to induce him to sign a consent to the adoption of these children.

On July 13, 1944, the court signed a judgment, which was entered on July 20, 1944, the material parts of which are as follows:

'It is therefore Ordered, Adjudged and Decreed.

'1. That all money and sums accruing and becoming due to Nancy St. Germain from Verner St. Germain subsequent to the 26th day of October 1934, under the award of $50 per month made to Nancy St. Germain and ordered paid by Verner St. Germain for the support of LaVerne and Clyde St. Germain, the children of said parties, under the Interlocutory Decree dated November 19, 1930, and confirmed by the Final Decree dated May 18, 1931, made in the case of Nancy St. Germain, plaintiff, vs. Verner St. Germain, Defendant, in cause No. 9131, in the Superior Court of Cowlitz County, said state, be and the same are hereby cancelled, discharged, vacated and here adjudged extinguished.

'2. That all sums due said Nancy St. Germain from said Verner St. Germain under said Interlocutory Decree and said Final Decree in said cause No. 9131, said Superior Court, prior to the 26th day of October, 1934, are hereby adjudged barred by the Statute of limitations, * * *.'

The judgment also quashed the writ of garnishment issued April 12, 1944, directed to Kaiser Company, Inc., and the general execution issued April 3, 1944, directed to the sheriff of Clark county. Mr. St. Germain was awarded costs. Nancy St. Germain Edwards has appealed from the judgment.

The assignments of error are: in deciding that the decree of adoption did, without any agreement to that effect, cancel any and all obligations on the part of respondent to pay support money under the decree, in deciding that collection of the money due under the decree prior to the order of adoption was barred by the statute of limitations and in the awarding of costs to respondent.

These questions are presented for our consideration:

1. Did the order of adoption, made and entered October 26, 1934, relieve and release respondent from the payment of any and all sums that might otherwise have been due subsequent to October 26, 1934, and which he would have been required to pay for the support and maintenance of his minor children under the interlocutory order and final decree of divorce hereinBefore referred to?

2. Has the statute of limitations run against all payments that may have accrued and have not been paid prior to October 26, 1934, under the interlocutory order and final decree?

3. Did the trial court err in awarding costs to respondent?

On the first question presented, it is the theory of appellant, as we understand it, that, while respondent, after the order...