Valaer v. Valaer, 32664
| Decision Date | 22 November 1954 |
| Docket Number | No. 32664,32664 |
| Citation | 277 P.2d 326,45 Wn.2d 565 |
| Court | Washington Supreme Court |
| Parties | Dorothy VALAER, Respondent, v. Virgil N. VALAER, Appellant. |
Cameron Sherwood, Robert A. Comfort, Walla Walla, for appellant.
Tuttle & Luce, Walla Walla, for respondent.
This is an appeal from a judgment denying a petition to modify a divorce decree.
Virgil and Dorothy Valaer were married in Walla Walla on June 21, 1923. Three children, Dorothy Joan, Eugene Webb, and Mary Ellen were born, the issue of the marriage. At the time of the divorce, the children were aged seventeen, fifteen and fourteen years respectively. When the parties married, neither of them owned very much property. In 1928 Virgil inherited property from his father's estate valued at approximately $500,000. This consisted chiefly of Walla Walla county farm land. Upon receipt of the inheritance, the parties constructed a large and expensive home. Virgil mortgaged the farm lands and invested the proceeds in various business enterprises. He became particularly interested in one of his businesses known as Oil Purifier Incorporated, and in 1940, when the company obtained some war contracts in California, he moved there to take charge of the operations, leaving his family in Walla Walla. Domestic difficulties arose and in 1942 divorce became imminent. April 29, 1942, the husband, as party of the first part, and the wife, as party of the second part, entered into a property settlement agreement. It recited that, because of various disagreements they considered it impossible to longer live together as husband and wife, and that they desired to effect a property settlement. (At that time the parties had not lived together as husband and wife for two years.) They agreed that the wife should have the custody of the three children with reasonable visitation rights in the husband. The agreement provided in part:
'Now, Therefore, in consideration of the mutual covenants and agreements herein contained and for the purpose of making and effecting a property settlement between the parties hereto and providing for the support and maintenance of the children of the said parties, the said party of the first part does hereby covenant and agree that he will pay all debts now incurred for the maintenance and support of the said parties; that he will make, execute and deliver to the party of the second part a good and sufficent conveyance of the residence and home of the said parties in Walla Walla, Washington, together with the household goods and furniture and the family car.
'That he will deed, in trust, to the Baker-Boyer National Bank of Walla Walla, Washington, all of the farm lands now owned by him in Walla Walla County, State of Washington, to be held in trust by the said Baker-Boyer National Bank for the purpose of providing an income for the said party of the second part and for the said children of the parties hereto; said lands to be held in trust during the lifetime of the said party of the second part or until the youngest child of said parties shall arrive at the age of 30 years.
'The said Trustee is to manage the said farm lands and to apply the proceeds therefrom toward the payment of the interest on the mortgage now in effect against said lands and the taxes and other necessary maintenance charges, and the net income after the deductions of said charges to be paid to party of the second part; provided, however, that the said party of the second part shall not be paid in excess of the sum of Four Hundred ($400.00) Dollars monthly, and the balance of the net income shall be held in a reserve fund to be used by the said Trustee for the purpose of retiring the mortgage indebtedness against said lands and for the purpose of meeting the Four Hundred ($400.00) Dollar monthly payment to the party of the second part in the event that the income from the said lands in any subsequent years may not allow of the payment of the full amount of Four Hundred ($400.00) Dollars monthly.
'* * *
'And providing further that if the said reserve fund exceeds the sum of Ten Thousand ($10,000.00) Dollars and the said mortgage indebtedness has been paid, then any sum in excess of the said sum of Ten Thousand ($10,000.00) Dollars shall be distributed and paid to the said party of the second part in addition to the Four Hundred ($400.00) Dollar Monthly payment hereinbefore prescribed.
'* * *
'It is Further Agreed by and between the parties hereto that the above provision shall be in lieu of a property settlement, allowance for alimony and support for the said party of the second part and the said minor children of the parties hereto, excepting that the party of the first part will, when the occasion arises, provide the funds for a college education for each of the said children.
'It Is Further Agreed by and between the parties threto that in the event that the proceeds from the said farm lands is not sufficient during the first twelve months following the execution of said trust agreement to pay the said party of the second part the said sum of Four Hundred ($400.00) Dollars monthly, the party of the first part will pay the said sum of Four Hundred ($400.00) Dollars monthly either to the Trustee for the said party of the second part or to the party of the second part directly.
'* * *
'In Consideration Whereof, the party of the second part agrees to make, execute and deliver any conveyances and releases necessary to put this property settlement into full force and effect and vest the title to any of the remaining property of the party of the first part or of the parties hereto in the said party of the first part, free and clear of any right, title, interest or claim of the party of the second part.
'* * *
In accordance with the above agreement, on July 15, 1942, Virgil entered into a trust agreement with the Baker-Boyer National Bank of Walla Walla, and conveyed his farm lands in trust to the bank. At that time the farm lands were mortgaged in the sum of $150,000. We shall not recite the details of the trust agreement because we do not consider them material to a decision of this case. At about the same time, each party conveyed to the other his or her interest in the remaining property, all in accordance with the provisions of the property settlement agreement.
July 10, 1942, Dorothy commenced an action for divorce. Paragraph IV of the complaint alleged 'That the plaintiff and defendant herein, have heretofore made and entered into a property settlement agreement which is a full and complete settlement between the parties for the maintenance and spport of the plaintiff and the said minor children of plaintiff and defendant, and in full settlement of all alimony and property rights of the parties.'
The prayer asked that the property settlement 'be ratified, approved and confirmed by the court.'
June 30, 1942, the husband, before a notary public in Oakland, California, executed the following notice of appearance in the divorce action:
'I hereby acknowledge service of the summons and complaint in the above entitled matter and waive other service and notice in the above entitled cause.
'I herewith enter my appearance in the above entitled action and consent that the Court may hear the issues raised by the complaint in the above entitled action without further appearance by me.'
The case came on for hearing March 26, 1943 before Honorable Timothy A. Paul. It was a default hearing. The property settlement was presented to the court for its consideration. The trust agreement was not presented and from our examination of the proceedings, it does not appear that it was mentioned. Finding No. IV provided:
'That the Plaintiff and Defendant herein have heretofore made and entered into a property settlement agreement which is a full and complete settlement and agreement between the parties for the maintenance and support of the Plaintiff and the said minor children of the Plaintiff and Defendant and in full settlement of all alimony and property rights of the parties and that the parties hereto have fully complied with the terms of said settlement and agreement and executed the conveyances provided for therein.'
Conclusion No. 3 provided:
'That the property settlement agreement heretofore made and entered into by and between the Plaintiff and Defendant, a copy of which has been filed herein as Plaintiff's Exhibit I should in all...
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