Stafford v. Stafford

• Decision Date: 10 October 1941
• Docket Number: 28515.
• Citation: Stafford v. Stafford, 117 P.2d 753, 10 Wn. 2d 649 (Wash. 1941)
• Parties: STAFFORD et ux. v. STAFFORD.
• Court: Washington Supreme Court

117 P.2d 753

10 Wn.2d 649

STAFFORD et ux. v. STAFFORD.

No. 28515.

Supreme Court of Washington

October 10, 1941

Department 1.

Action to quiet title by Morgan A. Stafford and wife against Evelyn Stafford. From a judgment dismissing the action, plaintiffs appeal.

Reversed and remanded with direction.

MILLARD J., dissenting.

Appeal from Superior Court, Walla Walla County; M. L. Driscoll judge.

John C Hurspool, of Walla Walla, for appellants.

George W. Thompson and Keylor Smith, both of Walla Walla, for respondent.

MAIN, Justice.

This action was brought to quiet title to real property. To the amended complaint, which will be referred to as the complaint, the defendant interposed a demurrer, which was sustained. The plaintiffs refused to plead further, and elected to stand upon their complaint. From the judgment dismissing the action, they appeal.

The facts, as stated in the complaint, so far as here material may be summarized as follows: Morgan A. Stafford, one of the appellants in this case, and Evelyn Stafford, his then wife were divorced, by final decree, February 10, 1923. The interlocutory decree in the case had awarded certain property to Mrs. Stafford, and provided for the sum of one hundred dollars as alimony for the support of herself and the minor son of the parties. October 16, 1935, the appellant, Morgan A. Stafford, intermarried with his present wife, Mabel Stafford. September 30, 1936, the appellants purchased, with monies earned after their marriage, certain real estate. The title thereto was taken in the name of both parties and was alleged to be their community property and to be of the value of five hundred dollars.

The complaint further states that the interlocutory decree and final decree in the divorce action create an apparent lien on the property and a cloud upon the appellants' title, and alleges that those decrees are not a lien and create no interest in the property here involved. There is a further allegation that the respondent claims the right to have execution levied upon the property and to sell the same or some interest therein in satisfaction of the unpaid portion of the alimony and support money, and threatens so to do.

The question presented is whether the awarding of a lump sum for alimony in the divorce decree became a lien upon real property subsequently purchased by community funds. Whether, if Mr. Stafford had real property at the time the divorce decrees were entered, such decrees would have created a lien upon the property, is a question which we will pass without discussion or decision because that question is not material here.

The decrees in the divorce action only imposed upon the divorced husband an individual obligation. The law of this state is that a separate judgment against a husband does not become a lien against community property. Brotton v. Langert, 1 Wash. 73, 23 P. 688; Deering v. Holcomb, 26 Wash. 588, 67 P. 240, 561. The interest of the respective spouses in community property is separate and distinct from the separate estate of each. Holyoke v. Jackson, 3 Wash.T. 235, 3 P. 841; Mattinson v. Mattinson, 128 Wash. 328, 222 P. 620.

Neither the husband nor the wife can alienate or convey his or her interest in community real estate during the lifetime of the community, and, if neither of them has the right to sell or convey to any third person, creditors have no greater right. Littell & Smythe Mfg. Co. v. Miller, 3 Wash. 480, 28 P. 1035: Stockand v. Bartlett, 4 Wash. 730, 31 P. 24.

The appellants rely also upon the case of Seattle Brewing & Malting Co. v. Talley, 59 Wash. 168, 109 P. 600. But that case is clearly distinguishable. On the other hand, the respondent leans heavily upon the case of Fisch v. Marler, 1 Wash.2d 698, 97 P.2d 147. In that case, there had been a prior marriage and divorce, with alimony mentioned in the decree. Subsequently, the husband remarried. The alimony provided for in the decree had not been fully paid. The divorced wife, by writ of garnishment, sought to recover the earnings of her former husband after he had remarried, and it was there held that the former wife had a right to such a writ, and, upon a hearing, the former wife may be given such portion of her past husband's earnings as may be just and equitable under the facts and circumstances of the particular case. The question of whether a decree for alimony, which is past due and unpaid, becomes a lien on real property, was not involved in that case. A husband has much broader control over community personal property than he has over community real estate.

Rem.Rev.Stat. § 6892, provides that: '* * * The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof.'

Section 6893 provides that: 'The husband has the management and control of the community real property, but he shall not sell, convey, or encumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed, or encumbered, * * *.'

From these statutes, it appears that the husband may sell and dispose of community personal property, but that he cannot make a testamentary disposition of the same, with the exception of one-half thereof; and that, even though...