Thompson v. Thompson
| Decision Date | 07 June 1973 |
| Docket Number | No. 42700,42700 |
| Citation | 510 P.2d 827,82 Wn.2d 352 |
| Parties | Jane D. THOMPSON, now Jane D. Lieser, Respondent, v. Donald L. THOMPSON, Appellant. |
| Court | Washington Supreme Court |
Reaugh, Hart, Allison, Prescott & Davis, Robert B. Allison, Keith R. Baldwin, Seattle, for appellant.
Cartano, Botzer & Chapman, Frank W. Birkholz, Seattle, for respondent.
In June 1969, the parties to this appeal were divorced. The decree adopted the provisions of a property settlement agreement which had been drawn by counsel for the two parties, after considerable negotiation, and which had been signed by the parties. It provided, inter alia, for the division of certain real and personal property, for the support of a child, for visitation rights, for the disposition of certain property upon the deaths of both parties, and for 'alimony.'
The provision entitled 'alimony' was as follows:
IT IS FURTHER ORDERED AND DECREED that the defendant shall pay to the plaintiff commencing July 1, 1969, the sum of $500.00 per month for the duration of her life. In addition, for the duration of plaintiff's life, she shall receive a sum equal to the excess, if any, over $6,000.00 per year of the net income yielded by the one-third ownership of the defendant in the Ninth & Lenora Street Company, a joint tenancy composed of Donald L. Thompson, Stuart G. Thompson, Jr. and Robert F. Thompson.
In arriving at this determination, depreciation on the present structure located on the hereafter described premises shall be in accordance with a pro forma statement attached to the findings of fact heretofore entered herein, and the defendant shall be entitled to the benefit of the reserve account relating to depreciation in accordance with the said pro forma statement. Also, in arriving at said net income, there shall be deducted the cost of repairs, insurance, utilities, taxes, management expenses and other ordinary operating costs.
The monies now and hereafter in the said reserve account may be distributed to the defendant as may be agreed upon by himself and the other tenants in common.
Upon the computation of the net rental from the Ninth & Lenora Company after the calendar year end, a balloon payment shall be made to conform with the defendant's additional alimony commitment as outlined above. The defendant shall exercise reasonable diligence to insure that such computation is made within a reasonable time following the end of each calendar year, and the said balloon payment shall become due and payable forthwith upon said computation.
Said payments shall constitute alimony, which shall be taxable to plaintiff. The Court, in making this decree, is cognizant of the fact that the findings of fact recite that the defendant for himself, his heirs, executors, administrators and assigns agrees not to seek to cause said alimony right to be reduced or altered on the basis of any change of circumstance with respect to either party; but such prohibiting shall not operate to prevent the plaintiff from seeking modification of same on the basis of change of circumstances; . . .
No appeal was taken from the entry of the decree of divorce, nor was any proceeding instituted to set the judgment aside under RCW 4.72.
Approximately 3 years later, on May 23, 1972, the appellant filed a petition to mofidy the 'alimony' provision. The respondent moved for summary judgment, which was granted, the court holding that the appellant was bound by his agreement, making the challenged payments permanent regardless of any change of circumstances.
An appeal was taken to the court of appeals and, thereafter, upon motion of the parties, the appeal was transferred to this court, so that the case might be heard and considered in conjunction with Kinne v. Kinne, Wash., 510 P.2d 814 (1973).
The case is before the court upon stipulated facts which tend to show that the parties understood and agreed, before the property settlement was signed, that the provision for support of the respondent was a part of the division of the property and that the term 'alimony' was used solely for tax purposes. Not only was this referred to in negotiations conducted between counsel for the parties, but the agreement itself declares
it is intended herein to fully, completely and irrevocably settle the property rights of the parties . . .
and
(i)t is intended that this property settlement agreement shall equally divide the community property of the parties.
The appellant's position before this court is that the trial court did not rule upon the question whether the payments were alimony or a property division, but rather rested its decision on the fact that the appellant agreed not to seek modification of the divorce decree. And he contends that such an agreement, where payments provided for in a contract are alimony rather than a property division, is contrary to public policy and therefore unenforceable. We need not decide whether he is correct in this concept of the law, since we do not think that the court's judgment is subject to such a narrow construction. Furthermore, it is the rule that a correct judgment can be sustained on any theory within the pleadings and the proof. Northwest Collectors, Inc. v. Enders, 74 Wash.2d 585, 446 P.2d 200 (1968); Lundgren v. Kieren, 64 Wash.2d 672, 393 P.2d 625 (1964).
While no findings of fact or conclusions of law were entered, the judgment shows on its face that the court based its decision on its interpretation of the property settlement agreement which was signed by the defendant and which formed the basis of the decree. That agreement not only provided, as hereinbefore noted, that it was intended to fully and finally settle the property rights of the parties and to equally divide the property, but it further provided, in regard to that portion which was designated 'alimony':
It is understood and agreed that plaintiff shall, subject to the provisions herein, receive all of the net income in the one-third ownership in the Ninth and Lenora Street property, a joint tenancy composed of Donald L. Thompson, Stuart G. Thompson, and Robert F. Thompson, for the duration of her life. This provision shall not be altered or modified by any change of circumstance or any application by the defendant to modify or reduce the alimony payments referred to herein or through any other act on the part of the defendant.
Alimony decreed by the court can be modified on subsequent application of a party to the divorce; property settlement provisions cannot. RCW 26.08.110.
Our cases hold that the provisions of a divorce decree relative to alimony may be modified on a proper showing, even if the payments were provided for in an agreement between the parties; however, the disposition of property made either by a divorce decree or by agreement between the parties and approved by the court cannot be so modified. Messersmith v. Messersmith, 68 Wash.2d 735, 415 P.2d 82 (1966); Fleckenstein v. Fleckenstein, 59 Wash.2d 131, 366 P.2d 688 (1961); Millheisler v. Millheisler, 43 Wash.2d 282, 261 P.2d 69 (1953), and Duncan v. Duncan,25 Wash.2d 843, 172 P.2d 210 (1946).
These cases are in harmony with the general rule that where a provision for support is an integral and inseparable part of a property settlement, and a decree incorporates the agreement, the decree cannot be modified with respect to support. 2A W. Nelson, Divorce and Annulment with Selected Forms § 17.03 (2d rev. ed. F. Reed Poore, David Rieg, E. Ent 1961). 24 Am.Jur.2d Divorce and Separation § 909 (1966). According to the encyclopedia, the fact that the property settlement or the decree based thereon calls periodic payments 'alimony' does not establish that they are such or that the provision for the payments is separable from the consideration for the settlement. Nelson's treatise is to the same effect.
Whether future payments provided in an agreement are alimony or a property division depends upon the...
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...A lower court's decision, if correct, can be sustained on appeal on any ground within the pleading and proof. Thompson v. Thompson, 82 Wash.2d 352, 510 P.2d 827 (1973); Northwest Collectors, Inc. v. Enders, 74 Wash.2d 585, 446 P.2d 200 (1968); Lundgren v. Kieren, 64 Wash.2d 672, 393 P.2d 62......
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