State v. Coffey

• Decision Date: 19 February 1970
• Docket Number: No. 40030,40030
• Citation: 465 P.2d 665,77 Wn.2d 630
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Junior COFFEY, Appellant.

Page 630

77 Wn.2d 630

465 P.2d 665

The STATE of Washington, Respondent, v. Junior COFFEY, Appellant.

No. 40030.

Supreme Court of Washington, En Banc.

Feb. 19, 1970.

MacDonald, Hoague & Bayless, Stephen R. Feldman, Anthony Wartnik and Clay Nixon, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Seattle, Jeremy R. Randolph, Deputy Pros. Atty., for respondent.

NEILL, Judge.

This appeal primarily concerns the jurisdiction of the courts to modify a child support order in a filiation proceeding.

In 1965, after hearing under RCW 26.24, defendant was adjudged to be the father of an illegitimate child and ordered to pay $100 a month child support. In 1967, the mother of the child filed a petition in the filiation proceeding seeking an order increasing the support payments. She alleged changed conditions as to the child's health and medical needs, her diminished ability to furnish support, and the defendant's increased ability to furnish support.

The defendant immediately challenged the jurisdiction of the court and the right of the mother to petition for modification. Then, the prosecuting attorney joined in the petition. These challenges were rejected and the matter proceeded to trial. Finding a substantial change in conditions, the trial court ordered the child support payments increased to $165 a month. Defendant appeals.

Error is assigned to (1) the ruling that joinder by the prosecuting attorney cured any lack of standing on the part of the mother and (2) the ruling that the courts have jurisdiction to modify child support orders in filiation.

The first assignment of error has little merit. Even if we were to assume that the state is the only party with standing to prosecute filiation matters, we agree with the trial court that pretrial joinder by the prosecuting attorney would cure any defect. To require dismissal in such circumstances only to have the prosecuting attorney refile the petition, would involve the courts in useless repetition.

Defendant's second assignment of error challenges the jurisdiction of our courts to modify filiation child support orders. This challenge has two basic thrusts:

Defendant first argues that, since our filiation statute (RCW 26.24) does not explicitly provide for modification of child support orders, jurisdiction to do so does not exist because (1) filiation proceedings are entirely statutory in nature and, thus, statutes are the sole source of the courts' jurisdiction; (2) other states have adopted the Uniform Illegitimacy Act, the Uniform Paternity Act, or other statutes containing express provision for modification, which indicates that only the legislature can give such power to modify; and (3) reference to our divorce statutes (which contain express provision for modification of child support decrees) shows that such jurisdiction does not exist absent statutory authorization.

Defendant's second argument is that, even if there would have been an inherent power in the courts to modify such orders, the wording and the legislative history of our filiation statute evidence a legislative intent to foreclose such jurisdiction in paternity actions in that: (1) The filiation statute uses the term 'order and judgment' when referring to the filiation decree, but uses only the word 'judgment' when referring to proceedings on defaulted installments. Thus, when the legislature provided for modification of a 'judgment' in RCW 26.24.150, it was referring only to default judgments and demonstrates its intent to restrict modification authority to default proceedings. Expressio unius est exclusio alterius. (2) The original bastardy statute (Code of 1881, § 1214 to § 1221) contained an express provision (§ 1221) for modification of the support decree. Thus, the absence of such a provision in the current (1921) act shows legislative intent to remove the modification power.

In analyzing defendant's first principal contention, we agree with his suggestion that the area of divorce jurisdiction is analagous and should be consulted. Prior to 1921, our divorce statutes did not contain any specific authorization to modify decrees relating to alimony and child support. By Laws of 1921, ch. 109 § 2, there was added the provision:

(W)hich order shall also make all necessary provisions as to alimony, costs, care, custody, support and education of children and custody, management and division of property, which order as to the custody, management and division of property shall be final and conclusive upon the parties subject only to the right of appeal;

Then, by Laws of 1933, ch. 112, the power to modify child support decrees was expressly stated.

If defendant's contention is correct, the legislative history of our divorce statutes would indicate that prior to 1933 (or possibly 1921) courts could not modify a child maintenance order once entered. Nonetheless, it had become established during that time that the courts had an inherent and continuing equitable jurisdiction where the welfare of minor children was involved, which existed independent of statutory authorization.

For example, in Poland v. Poland, 63 Wash. 597, 600, 116 P. 2, 3 (1911), we observed:

The jurisdiction of the court in divorce cases, where alimony is awarded for the support of children, is a continuing one, and the jurisdiction of both the parties and the subject-matter continues so long as there is a minor child whose welfare and maintenance are provided for in the decree.

Accord, Dyer v. Dyer, 65 Wash. 535, 118 P. 634 (1911); Harris v. Harris, 71 Wash. 307, 128 P. 673 (1912). In Dyer, 65 Wash. at 537, 118 P. at 635, we further noted that 'These matters, from their very nature, invoke the equitable powers of the court, and the jurisdiction is a continuing one * * *.'

In Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L.R.A.1917F, 721 (1917), wherein we held that the particular alimony decree where no children were involved was not subject to modification, we discussed the difference between the case before the court and one in which there were minor children under the protection of the court, at 55, 165 P. at 1065:

(T)he courts of all the states are at one upon the proposition that, so far as the decree of alimony is for the benefit of the minor children of the spouses, the power to modify the decree continues so long as there are minor children under the protection of the court. * * * The right of the wife to alimony arises immediately out of the marriage contract, but the right of the child to support at the hands of its parents springs from the incidental relationship which had its origin in marriage, to wit, that of parent and child. The court therefore, acting upon this relationship as one of the things brought to it by the divorce action, has the power to modify or alter its decree so long as there are minor children under the protection of the court.

Then, in Cross v. Cross, 98 Wash. 651, 168 P. 168 (1917), we reiterated the power of courts to modify an alimony decree in a case wherein children were involved and the decree provided that the payments were for 'support of herself and her children.' This independent power to modify appears to have become imbedded as law of the state by the time of Holter v. Holter, 108 Wash. 519, 185 P. 598 (1919).

Finally, in State ex rel. Ranken v. Superior Court, 6 Wash.2d 90, 94, 106 P.2d 1082, 1083 (1940), we noted that, even though the earlier statutes contained no express provision for modification of divorce decrees,

Nevertheless, during the time that the statute was in force this court repeatedly held that, under its equitable powers, the court had continuing jurisdiction in divorce cases to modify the decree, So long as there was a minor child, or children, whose maintenance and welfare was provided for in the decree.

There was a time in the history of Anglo-Saxon jurisprudence when an illegitimate child was a total outcast, without a right to support from either its mother or father. In later common law, the duty of the support of such a child was entirely upon the mother. Now, almost universally, the father is given a share of this responsibility by statute. In keeping with this enlightened change of concept as to the status and rights of an illegitimate child, we are not disposed to treat the illegitimate child so differently from the legitimate child caught in the backwash of his parents' separation. In all sense of justice and equity, any such distinction, at least as to the right of parental support, belongs to a bygone day. That our courts are not confined to such antiquity is evident from the statutory and case history of child support decrees in the analogous field of divorce.

As the preceding discussion has shown, developments in the divorce area contradict defendant's first set of arguments against the jurisdiction of the trial court. The mere absence of explicit statutory provision for child support modification does not foreclose the courts from updating support orders to reflect changing realities. Such continuing jurisdiction inheres in the equitable powers of the courts wherever, by common law or statute, the power to order such child support exists.

The question remains whether the wording or history of RCW 26.24 negates the inherent jurisdiction to modify child support orders in filiation proceedings. On the point, the gist of defendant's argument is that explicit provision in RCW 26.24.150 for modification of 'judgments,' meaning default judgments, shows a legislative intent to exclude any power to modify child support 'orders.' The answer to this argument is provided by the legislative definitions of these terms: RCW 4.56.010--'A Judgment is the Final determination of the rights of the parties in the action.' (Italics ours.) RCW 4.56.020--'Every direction of a court or judge, made or entered in writing, Not included in a judgment, is denominated an Order.' (Italics ours.)

It is understandable that the legislature would consider it...