Timmons v. Timmons, 46571

• Decision Date: 16 October 1980
• Docket Number: No. 46571,46571
• Citation: 617 P.2d 1032,94 Wn.2d 594
• Parties: In re the Marriage of: Elmer TIMMONS, Respondent, v. Wendy TIMMONS, Petitioner.
• Court: Washington Supreme Court

Page 594

94 Wn.2d 594

617 P.2d 1032

In re the Marriage of: Elmer TIMMONS, Respondent, v. Wendy TIMMONS, Petitioner.

No. 46571.

Supreme Court of Washington, En Banc.

Oct. 16, 1980.

Helsell, Fetterman, Martin, Todd & Hokanson, Donald C. Harrison, Seattle, for petitioner.

Jacobs & Jacobs, Thomas E. Jacobs, Puyallup, for respondent.

UTTER, Chief Justice.

Is a judge in a proceeding to modify an uncontested dissolution decree limited to evidence of post-decree facts showing a change of circumstances since the time of the decree? We conclude that when a dissolution is uncontested, a judge may consider pre-decree facts. The order in this case, which considered pre-decree facts is supported by substantial evidence and was therefore properly entered.

Petitioner Wendy Timmons (now Wendy Rolleston) and Elmer Timmons separated in June, 1977 after twelve years of marriage. They agreed that their two children, now ages 9 and 6, would remain in the family home with Elmer until Wendy got "back on her feet," and then she "could have them back." After discussing arrangements, Wendy joined in a petition for dissolution which Elmer filed in August, 1977. The marriage was dissolved four months later, and pursuant to the agreed request in the petition, Wendy was awarded custody of the children with the proviso that she could not take them out of Washington without the court's permission. The children, however, continued to live with Elmer, and shortly after the dissolution, he remarried.

In February, 1978 Wendy asked Elmer to allow the children to come live with her according to their agreement, but she yielded to his request that the children not move until the school year ended. Then, after a weekend visitation in June, 1978 Wendy kept the children despite Elmer's opposition.

Wendy met her present husband in the summer of 1978, and petitioned for modification of the dissolution decree to permit her to take the children to Georgia to reside with her and her husband after their marriage. Elmer cross-petitioned for a change of custody.

Trial was held in December, 1978. Noting that the dissolution was uncontested, the trial judge ruled that Elmer did not need to show a change of circumstances since the original decree. Over objection by Wendy's counsel, he admitted evidence of events which occurred before entry of the decree. Testimony was heard concerning Wendy's actions and emotional state prior to dissolution. Basing his decision partially on this pre-decree evidence, the trial judge concluded that modification was necessary to serve the best interests of the children. The court found that Elmer had satisfied two alternate statutory grounds for modifying custody: (1) the living situation of the children with Wendy was detrimental to their health and the harm likely to be caused by a change of custody was outweighed by the advantages, and (2) the children had become integrated into Elmer's family with Wendy's consent. Wendy appealed.

The Court of Appeals held that consideration of facts that arose prior to the decree was proper and that since both of the alternative reasons for decision were supported by the evidence, modification was proper. Wendy petitioned for review on two grounds. She first claims that a post-decree change of circumstances must be shown and that pre-decree evidence is inadmissible, even when the decree was uncontested. Secondly, she urges that the facts do not support a finding of detriment to health or integration.

The Dissolution Act of 1973 provides in pertinent part:

The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian established by the prior decree unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the custodian; or

(c) The child's present environment is detrimental to his physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

RCW 26.09.260(1). Thus, in order to modify a prior custody decree, the judge must find that a "change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the interests of the child(ren)." These determinations shall be made "upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, ..." RCW 26.09.260(1) (emphasis added).

Petitioner urges that "facts ... unknown to the court" refers only to facts not presented to the court when a genuine contested hearing took place. Since her dissolution was uncontested, she maintains that only facts which arose since the decree should have been considered and that the trial court erred in admitting pre-decree facts.

Before the present Dissolution Act, former RCW 26.08.110 (repealed 1973) provided that custody decrees could be "modified, altered, and revised by the court from time to time as circumstances may require." We held under this statute that res judicata principles generally applied to bar reconsideration of conditions existing at the time of the decree. Brim v. Struthers, 44 Wash.2d 833, 835, 271 P.2d 441 (1954). Thus, modification required a change of circumstances since the original decree, and evidence relating to events and conditions prior to the decree was inadmissible. Holten v. Holten, 64 Wash.2d 203, 206, 390 P.2d 982 (1964); see White v. White, 24 Wash.2d 52, 56, 163 P.2d 137 (1945).

In limiting the scope of inquiry, it was assumed that the court granting the original decree made its decision based on knowledge of all the existing circumstances. In re Rankin, 76 Wash.2d 533, 537, 458 P.2d 176 (1969). When a custody decree was entered upon default, therefore, the reasons for the rule did not apply:

The court has had no opportunity to observe the two contending parents upon the witness stand or to examine the evidence concerning their fitness and concerning the welfare of the child. It must accept the allegations of the petitioner or, at best, the uncross-examined testimony of the petitioner ...

Rankin, at 536, 458 P.2d at 178. Thus, a default custody decree could be modified without a showing of changed circumstances and the court could consider facts which existed at the time the original decree was entered. Rankin, at 537-38, 458 P.2d 176; see White v. White, supra.

Petitioner argues that the Rankin rule should not apply to uncontested dissolutions under the 1973 Act. She distinguishes the Rankin decree, which was uncontested because it was by default, from the usual uncontested dissolution today, in which the decree is entered upon a petition which both parties have joined. To allow consideration of pre-decree facts, she contends, would undermine the policy of the present Dissolution Act that the parties, rather than a judge, can best work out dissolution arrangements.

We conclude that, because of the continuing paramount concern for the best interests of the child, that the rationale for the Rankin rule equally applies when the parties join in a petition. A couple should not be able to foreclose judicial inquiry into facts which may assist in making the critical determination of how a child's interests would best be served, by agreeing as to who should receive original custody. Whether the decree is entered upon default, or whether the decree is entered upon an agreed petition after brief questioning of the petitioner, the observations we made in Rankin still apply:

(t)he primary concern of the courts is always the welfare of the child. It would be unrealistic to assume that this concern can be served as well by a court which does not hear evidence and does not have an opportunity to observe both parents as it can by one in which the right of one parent to custody is contested by the other.

Rankin, at 537, 458 P.2d at 179. The Rankin rule assures true judicial consideration of all relevant facts concerning the welfare of the children.

Petitioner further asserts that to allow consideration of pre-decree facts will subject the majority of decrees to virtually de novo hearings as soon as a custody dispute arises, and will thus create a tentativeness that is at odds with the policy of discouraging modification proceedings. However, the statutory preference for custodial continuity remains whether or not pre-decree facts are considered. The court must still find that modification is "necessary to serve the best interests of the child(ren)," and shall "retain the custodian established by the prior decree" unless agreement, integration, or detriment to health is shown. RCW 26.09.260(1).

The current statute embodies the policy allowing the modifying court to consider previously undisclosed facts. Unlike the prior statute, RCW 26.09.260 specifically sets forth what facts the court may consider, including facts "unknown to the court."

Our task is to give effect to the intent and purpose of the legislature, as expressed in the statute. E. g., Strenge v. Clarke, 89 Wash.2d 23, 29, 569 P.2d 60 (1977). We find an intent to moderate the harshness of res judicata, regardless of whether or not the decree was contested, due to the public interest in the welfare of children. See 24 Am.Jur.2d Divorce and Separation § 819 (1966). We therefore hold that when a dissolution was uncontested, on a subsequent petition to modify, pre-decree facts are "unknown" within the meaning of the statute and can be considered by the trial court. Cf., McDaniel v. McDaniel, 14 Wash.App. 194, 539 P.2d 699 (1975) (facts which petitioner became aware of...