State ex rel. Lucas v. Superior Court for King County
| Decision Date | 28 December 1937 |
| Docket Number | 26823. |
| Citation | 193 Wash. 74,74 P.2d 888 |
| Parties | STATE ex rel. LUCAS v. SUPERIOR COURT FOR KING COUNTY. |
| Court | Washington Supreme Court |
Original application for writ of certiorari by the State of Washington, on the relation of Frank Lucas, to review an order of the Superior Court of the State of Washington for King County, William G. Long, presiding, making an allowance for temporary support for a minor child pending an application to modify a divorce decree.
Order affirmed.
Ward W Roney, Raymond D. Ogden, and Raymond D. Ogden, Jr., all of Seattle, for plaintiff.
Mifflin & Mifflin, of Seattle, for defendant.
This case is here on certiorari to review an order of the superior court making an allowance for temporary support for a minor child pending an application to modify a divorce decree.
The relator, Frank Lucas, and his divorced wife, Anne Lucas (who will be referred to as the respondent), were married December 15, 1930. As a result of this marriage, one child was born. December 1, 1932, an interlocutory decree of divorce was entered, awarding custody of the child to the respondent and making certain provisions for the maintenance of the respondent and the minor child. The final decree of divorce which confirmed the interlocutory decree, was entered March 5, 1934. July 1, 1937, the respondent filed a petition asking for a modification of the decree so as to provide for the support of the minor child who was then five years of age. The petition and a twenty-day summons were served upon the relator. On the same day, the respondent applied to the court for an order requiring the relator to show cause why he should not be required, pending the determination of the petition, to modify the decree to provide for the support and maintenance of the minor son. The order to show cause was issued and was returnable on the 8th day of July, 1937. On this day, as shown by the clerk's minutr entry, the hearing on the show cause order was continued to the time of the hearing of the petition to modify. July 31, 1937, the respondent again moved for a show cause order, of like import as the previous one, and an order was issued, returnable on August 19, 1937. In response to this show cause order, the relator appeared.
The application for the order for support for the child, pending the hearing on the petition to modify, was supported and resisted by affidavits. At the conclusion of the hearing, the court entered an order requiring the relator, pending the hearing upon the petition to modify, to pay to the respondent the sum of $20 per month, effective with the month of August, but that payment was not to be made until September 1, 1937. The relator applied to this court for a writ of certiorari which, as above indicated, was issued directing that a transcript of the record and proceedings be brought to this court, properly certified. No statement of facts or bill of exceptions has been brought to this court showing what took place upon the hearing, after which the order complained of was entered. The affidavits above referred to as being in support and resistance of that order, are contained in the clerk's transcript and are not properly here. It has been repeatedly held that affidavits which were used during the progress of a hearing in the superior court to establish or dispute a fact cannot be considered unless they are included in the statement of facts or bill of exceptions and by certificate of the trial judge made a part of the record. Powers v. Washington Portland Cement Co., 79 Wash. 1, 139 P. 615; Faasch v. Karney, 145 Wash. 390, 260 P. 255; Ice Delivery Co. of Spokane v. Davis, 137 Wash. 649, 243 P. 842.
In the last case cited, the rule above stated is referred to as the 'uniform holding of this court.' The rule is as applicable to a hearing here on certiorari on the merits as it is in the case of an appeal. The writ of certiorari was issued for the reason that an appeal was not an adequate remedy. Rem.Rev.Stat. § 1002.
The sole question here for consideration is the right of the trial court to make provision for support for a minor child while an application to modify the divorce decree is pending. We are not here concerned...
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