Thornton v. Thornton

• Court: Washington Supreme Court
• Writing for the Court: MITCHELL, J.
• Citation: Thornton v. Thornton, 136 Wash. 129, 238 P. 977 (Wash. 1925)
• Decision Date: 03 September 1925
• Docket Number: 19332.
• Parties: THORNTON v. THORNTON.

238 P. 977

136 Wash. 129

THORNTON v. THORNTON.

No. 19332.

Supreme Court of Washington

September 3, 1925

Department 1.

Appeal from Superior Court, Spokane County; Huneke, Judge.

Proceeding by Everett Thornton to have modified a decree of divorce awarding to his wife, Stella Thornton, custody of their minor child and an allowance for its support, in which she filed a cross-petition for an increase in the amount awarded. From an order denying his petition, and granting that of the cross-petition, he appeals. Affirmed.

A. C Clausen, of Spokane, for appellant.

McCarthy Edge & Lantz, of Spokane, for respondent.

MITCHELL J.

Plaintiff, Stella Thornton, and defendant, Everett Thornton, were divorced in 1912, she being awarded the custody of their child and he being ordered to pay $10 a month for its support. In January, 1925, he filed a petition for a modification of the decree relieving him from all further payments. She answered, and also filed a cross-petition that he be required to pay $25 per month for the support of the child. Upon the hearing, the order was that he pay $20 per month. He has appealed.

It is contended that, under sections 995-3, 995-4, and 995-5, Rem. Comp. Stat., relating to petitions to modify judgments or decrees relating to children, no provision is made for a cross-complaint or cross-petition, and that the superior court erroneously denied appellant's motion to strike the cross-petition. While those sections say nothing about a cross-petition, eo nomine, they do say that either party to the action may petition, and we think that without doubt both parties may petition and be heard at the same time as was done in this case.

The respondent has married again, and because the child is living in the home of its stepfather it is argued that the natural father is thereby relieved of all further obligation of supporting the child. This was the theory of his petition. Many authorities are cited discussing the duty of a stepfather under such circumstances. Those cases are not in point. The stepfather is not a party to this proceeding. While it is true that in the case of White v. McDowell, 74 Wash. 44, 132 P. 734, we said, 'There is a duty upon a stepfather to support the minor children of his wife by a former husband, and that this duty is something more than mere charity,' that saying must not be considered as doing away with the rule laid down in McGill v. McGill, 67 Wash. 303, 121 P. 469, where we said:

'On the merits, the defendant answered that the present husband of the plaintiff had voluntarily assumed the support of the child, and stood in loco parentis; that the purpose of the decree was thus met and the defendant thus absolved from its further observance. The solemn decrees of courts are not to be discharged in any such fortuitous fashion. We cannot recognize charity, however, willingly bestowed, as a legal substitute for the natural duty of a parent to maintain his minor child. The court correctly held that the answer stated no defense.'

The two rules are not inconsistent. Either or both...