Vigelius v. Vigelius

• Decision Date: 10 August 1932
• Docket Number: 23703.
• Citation: 169 Wash. 190,13 P.2d 425
• Court: Washington Supreme Court
• Parties: VIGELIUS v. VIGELIUS.

13 P.2d 425

169 Wash. 190

VIGELIUS v. VIGELIUS.

No. 23703.

Supreme Court of Washington

August 10, 1932

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by Lina Vigelius against Louis Vigelius. Judgment for defendant, and plaintiff appeals.

Affirmed.

Riddell Brackett & Fowler, of Seattle, for appellant.

William A. Gilmore, of Seattle, for respondent.

PARKER J.

The plaintiff, Mrs. Vigelius, seeks recovery from the defendant Mr. Vigelius, her former husband, of the sum of $10,000 claimed as the balance owing by him to her under a separation contract entered into between them. A trial upon the merits in the superior court for King county, sitting without a jury, resulted in findings and judgment denying to her any recovery, from which she has appealed to this court.

Mr. and Mrs. Vigelius were married to each other in the year 1896. They lived together until the fall of 1912, during which period they accumulated property of the approximate value of $20,000. They then became estranged from each other and separated, and thereafter, on November 4, 1912, entered into a separation contract. By the terms of that contract, Mrs. Vigelius was given of their property securities of the value of $10,000, and some personal property, all to become her separate property. For recovery in this action, she relies upon the following provision of that contract: 'The husband shall also at all times during the joint lives of the wife and himself, until their divorce and remarriage by the wife, pay to her on the first day of each and every month the sum of Seventy-five Dollars, as her sole and separate estate.'

He resists her claim of recovery, alleging that in the year 1918 they, by mutual agreement, modified that provision of the contract, and agreed that his future obligations thereunder should be to pay her only $25 per month; and that he has, on or about the first day of each and every month thereafter, paid her $25, which she has accepted as a compliance with that modifying agreement.

On October 29, 1914, there was duly awarded to Mrs. Vigelius by the superior court of King county a final decree of divorce from Mr. Vigelius; their property rights and obligations being left by the court as agreed upon by their contract of November 4, 1912. On December 20, 1915, Mrs. Vigelius was awarded a money judgment against Mr. Vigelius in the sum of $1,325 for unpaid balance owing by him to her under the contract. He having met financial reverses, no part of this judgment was paid by him until about March 1, 1918, when she accepted from him $800 in full payment of that judgment and of all sums owing to her under the contract at that time. Mr. Vigelius claims that it was then that the modifying agreement was entered into. With reference to that, the trial court found as follows: 'The court further finds that on or about the 1st of March, 1918, plaintiff and defendant entered into an oral agreement changing and modifying said written separation agreement whereby the defendant was to satisfy the said judgment of record referred to herein and thereafter pay to the plaintiff the sum of $25 per month on the first of each and every month thereafter so long as said written separation agreement was in full force and effect between the parties and that as part of said oral modification plaintiff orally agreed with the defendant to waive all other claims and demands against said defendant then due or to become due other than said $25 per month. * * * The defendant has paid to the plaintiff on or about the first day of each and every month since said time the sum of $25 per month as orally agreed between them. * * *'

It is contended in behalf of Mrs. Vigelius that the trial court erred in finding that a modifying agreement was made reducing Mr. Vigelius' obligation to $25 per month, as claimed by him. Our reading of the evidence convinces us that it does not...