State v. Superior Court for King County
| Decision Date | 03 June 1932 |
| Docket Number | 23743. |
| Citation | 168 Wash. 326,11 P.2d 1071 |
| Parties | STATE ex rel. BUSHNELL v. SUPERIOR COURT FOR KING COUNTY. |
| Court | Washington Supreme Court |
Department 2.
Original proceeding for a writ of prohibition by the State, on the relation of Anna J. Bushnell, to restrain the Superior Court of the State of Washington for King County, and the Honorable Otis W. Brinker, Judge thereof, from entering an order modifying a final decree of divorce entered in the case of Joel H. Bushnell against Anna J. Bushnell.
Alternative writ quashed, and proceeding dismissed.
Tucker & Tucker, of Seattle, for relator.
Landon & Landon, of Seattle, for respondent.
Relator seeks in this court a writ of prohibition restraining the superior court for King county, Hon. Otis W. Brinker, judge from entering an order modifying a final decree of divorce entered in the case of Joel H. Bushnell, Plaintiff, v. Anna J. Bushnell, Defendant. An interlocutory order was entered in the action referred to February 21, 1931, containing, inter alia, the following provision: 'It is further ordered, adjudged and decreed that the plaintiff shall also pay to the defendant the sum of $75.00 per month for four months and then the sum of $85.00 per month until the further order of this court but in no event shall the plaintiff make monthly payments to the defendant for more than five years. * * *'
August 31, 1931, a final decree of divorce was entered, confirming the interlocutory order. The parties to the divorce action have no children, and the court was concerned only with the rights and obligations of the parties to the action.
During the month of January, 1932, Joel H. Bushnell filed in the divorce action a petition, praying that the decree be modified by relieving him from the duty of making any further payments thereunder to Anna J. Bushnell. Mrs. Bushnell appeared in response to a citation issued on this petition and, after a hearing, the trial court indicated its intention to enter an order modifying the decree by reducing the amount of the payments to be made by Mr. Bushnell. Mrs. Bushnell contending that the trial court has no jurisdiction to modify the decree, seeks from this court a writ of prohibition restraining the superior court and the judge thereof, Before whom the matter is pending, from proceeding further and from entering any order of the nature indicated.
Relator contends that, as the monthly payments provided for by the decree are for the sole use and benefit of relator, it must be held that these payments constitute a property settlement, and that such a settlement contained in an interlocutory order, subsequently confirmed by the entry of a final decree or divorce, is not subject to modification, citing Cassutt v. Cassutt, 126 Wash. 17, 217 P. 35; Cooper v. Cooper, 146 Wash. 612, 264 P. 1; Hutchison v. Hutchison, 148 Wash. 417, 269 P. 341.
Respondent contends that in such a situation as this the extraordinary right of prohibition will not lie, as the remedy by appeal is adequate. Our view of the merits of the question presented renders discussion of this phase of the proceeding unnecessary, and, assuming without deciding that relator is entitled to present the question at issue in an application for a writ of prohibition, we determine the question upon the merits.
Assuming that, when the superior court in a divorce action has by interlocutory order fixed a property settlement between the parties, and a final decree of divorce has been entered pursuant to the interlocutory order, the decree may not, under the rule laid down in the cases cited and other decisions of this court, be subsequently modified, we hold that a different situation is presented by the record exhibited in this proceeding.
In the case of Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L R. A. 1917F, 721, this court determined that a...
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