State ex rel. Cummings v. Kinne, 28254.

• Decision Date: 08 March 1941
• Docket Number: 28254.
• Citation: 8 Wn.2d 1,111 P.2d 222
• Parties: STATE ex rel. CUMMINGS v. KINNE, Judge. CUMMINGS v. CUMMINGS et al.
• Court: Washington Supreme Court

111 P.2d 222

8 Wn.2d 1

STATE ex rel. CUMMINGS v. KINNE, Judge.

CUMMINGS v. CUMMINGS et al.

No. 28254.

Supreme Court of Washington

March 8, 1941

Department 2.

Writ of Certiorari and an Appeal from Superior Court, King County James B. Kinne, Judge.

Consolidated proceedings involving the contest between Beulah Mitchell Cummings and Marion R. Cummings as to the custody of minor sons of Beulah Mitchell Cummings and Marion R. Cummings deceased. A decree and orders adverse to Beulah Mitchell Cummings were entered by James B. Kinne, Judge of the Superior Court for King County, and Beulah Mitchell Cummings appeals and brings certiorari. The appeal and certiorari proceedings are consolidated. The respondents move to dismiss the appeal.

Motion to dismiss appeal denied, and orders and decree dismissed.

Kumm &amp Hatch, of Seattle, for respondent.

BEALS Justice.

Beulah Mitchell Coutts (nee Mitchell) and Marion R. Cummings intermarried January 25, 1921. Each party had been married previously, both being childless at the time of their marriage. Three sons were born to them: William, born February 3, 1923; Robert, April 1, 1925; and Marion, April 26, 1926. After much marital unhappiness, the parties sought a divorce, each party complaining of the other. Their difficulties, however, were not disclosed in detail Before the court, the parties having agreed upon the details of the separation. An interlocutory order of divorce was entered September 2, 1931, granting a divorce to each party, and awarding the custody of the three children to both parties, the order providing, however, that the care, support and domicile of the children should be, until further order of the court, with Marion R. Cummings, subject to the right of visitation by the mother at all reasonable times and places. A final decree of divorce was entered March 22, 1932.

Mr. Cummings maintained a home for his children, employing housekeepers, until during the month of August, 1934, he married Helen Draper Savage, who was then approximately thirty-five years of age, the family continuing to reside at 1105 Greenwood avenue, Seattle, the home formerly maintained by Mr. Cummings.

Marion R. Cummings died September 15, 1935, leaving a will in which the Seattle-First National Bank of Seattle was named as executor. His estate was appraised at $45,700. By his will, Mr. Cummings set up a trust for the benefit of his mother, his children, and his second wife.

It appears that Mrs. Beulah Cummings is possessed of some property, enjoying, as she testified, during a considerable portion of the period with which we are concerned, an income of $185 per month.

Upon the death of Mr. Cummings, Beulah Cummings became immediately entitled to the custody of her sons. She, however, took no steps to establish a home for herself and her children, but permitted the boys to remain with their stepmother, who continued to occupy the family dwelling and to care for the children, who received an income from the trust established for their benefit by their father. It does not appear that the income from this fund was greater than the amount required for the reasonable support, maintenance and education of the boys.

After her divorce, Beulah Cummings resided in an apartment in Seattle, where she lived until August, 1934, when she moved to the home of one Mrs. Barton, in West Seattle, where she remained as a paying guest until October, 1936, when she moved to another apartment in Seattle.

During the month of June, 1940, Beulah Cummings, for the first time, sought the custody of her children. They were then, respectively, seventeen, fifteen and fourteen years of age. June 13th, Beulah Cummings filed in the divorce action her petition seeking a modification of the interlocutory order, in so far as the same provided for the custody of the children, and an order was issued, requiring Helen Cummings to show cause why the custody of the children should not be transferred to Beulah Cummings. After answer to this order, it was stipulated that the proceeding should be considered as a proceeding in the nature of a writ of habeas corpus. While this matter was pending, the three boys filed in the superior court their petition asking that they be adjudged dependent children; that they be made wards of the court; and that their custody be awarded to their stepmother, Helen Cummings. This petition was filed in the juvenile department of the superior court. The two proceedings were consolidated and together assigned for trial.

During the course of the hearing, some question having been suggested as to the correctness of the procedure which had been followed, a formal application for writ of habeas corpus was filed by Beulah Cummings, which, by stipulation, was consolidated with the pending matters then in hearing.

After a lengthy trial, the court decided that the three boys should be declared wards of the superior court, and their custody, subject to further order of the court, awarded to Helen Cummings.

The trial court embodied its decision, first, in an order entered in the proceeding Before the juvenile court, the order declaring the children to be dependent children, within the intent of the statute, making the children wards of the court, and directing that they continue to reside in the custody of their stepmother, Mrs. Helen Cummings, until further order of the court, it being provided that Beulah Cummings be permitted to have the children visit her at any and all reasonable times. Beulah Cummings has brought this order Before us for review by way of certiorari.

On the same date, the court made an order discharging the writ of habeas corpus, and entered a decree entitled in the divorce case, the decree referring to the order just previously entered in the juvenile court proceeding, and by reference making that order a part thereof, the decree declaring that Beulah Cummings is incapable of exercising the necessary control over the children; that the best interests and welfare of the children require that they should remain in the environment and place of abode where they had previously been living; and that, until further order, Helen Cummings should continue to have their care and custody. The decree then formally declared that the petition of Beulah Cummings for the custody of her children be denied. From this decree, and from the order discharging charging the writ of habeas corpus, Beulah Cummings has appealed. The certiorari proceeding and the appeal have been, by order entered by this court, consolidated for hearing, and will be considered together.

Mrs. Beulah Cummings will be referred to as appellant, Mrs. Helen Cummings as respondent, and the boys, who are also respondents here, as the children.

Appellant assigns error upon the overruling of her demurrer to the petition of the minor children asking that they be made wards of the juvenile court; upon the overruling of her challenge to the sufficiency of the evidence in connection with the juvenile court proceeding; upon the ruling of the court that the children were dependent children; and upon the decree declaring them to be wards of the juvenile court. Appellant also assigns error upon the introduction of evidence over her objection; upon the court's ruling that appellant was not a fit and proper person to have the custody and control of her children; upon the denial of her application for a writ of habeas corpus; upon the refusal of the trial court to grant the writ and direct that the custody of her children be turned over to her; and upon that portion of the decree awarding the custody of the children to respondent.

All the respondents join in a motion to dismiss the appeal, asserting that appellant, by enforcing, pending the appeal, that portion of the order entered in the juvenile court proceeding giving her the right to have her children visit her, has accepted the benefits of that order, and has thereby waived her right to review the same Before this court, and is estopped from further prosecuting this appeal.

It appears that, December 13, 1940, after this appeal had been taken, appellant, being of the opinion that respondent had not proved cooperative in allowing appellant the right to have her children visit her, applied to the juvenile court for an order directing respondent to show cause why she should not be adjudged in contempt for failure to comply with the order. A hearing was held on this petition, with the result that respondent was adjudged not to be in contempt, but an order was made, directing that the children visit appellant at her home. Respondents argue that because of the facts above stated, this appeal should be dismissed, citing several authorities to the effect that 'a party who enforces his judgment or decree generally waives his right to appeal.' 4 C.J.S. 423, § 220.

Respondents also rely upon the case of Harris v. Harris, 67 App.D.C. 85, 89 F.2d 829, in which the United States Circuit Court of Appeals for the District of Columbia held that a wife who had been granted a divorce, and who, without asking for alimony pendente lite, demanded and received the alimony provided for in the decree, had waived her right to appeal.

The case of Kleppe v. Kleppe, 103 Ind.App. 405, 8 N.E.2d 93, is also cited. In that case, a divorce was granted at the suit of the husband, the wife having been awarded the custody of a child, the husband being required to pay for the child's support. The wife appealed, and while the appeal was pending, cited her husband for contempt for failure to make the payments provided for by the decree. On motion, the wife's appeal was dismissed. This ruling seems open to serious question, if no allowances pendente lite could be made pending appeal, but in...