Von Herberg v. Von Herberg
| Citation | 6 Wn.2d 100,106 P.2d 737 |
| Decision Date | 29 October 1940 |
| Docket Number | 27825. |
| Parties | VON HERBERG v. VON HERBERG. |
| Court | Washington Supreme Court |
Department 1.
Divorce proceeding by Mary E. von Herberg against John G. von Herberg wherein a decree was entered for plaintiff. From decrees reducting the amount provided in the interlocutory decree for alimony and support and fixing the amount in which defendant was in arrears in payment of those sums and dividing the property which the parties owned, each party appeals.
Affirmed.
Where vendor sold realty to a business associate under agreement to pay a certain sum unless property would be resold in which case vendor would reimburse the associate for any loss sustained up to a certain amount, agreement was not required to be in writing under the statute of frauds since it was possible under terms of agreement to sell premises sustaining a loss and securing a right thereby to be reimbursed for loss within one year. Rem.Rev.Stat. § 5825(1).
Appeal from Superior Court, King County; Donald A McDonald, judge.
Ballinger Hutson & Boldt and A. J. Falknor, of Seattle (Kenneth C. Hawkins, of Seattle, of counsel), for appellant.
Rummens & Griffn and Allen, Carey & Rombauer, all of Seattle, for respondent.
This case involves a petition for a change in the amount of allowance made to plaintiff in a divorce case for alimony and the support of children, and for the division of property commonly owned by plaintiff and defendant.
The case was tried to the court, and decrees were entered reducing the amount provided in the interlocutory decree for alimony and support, fixing the amount in which defendant was in arrears in the payment of those sums, and dividing the property which the parties owned as tenants in common. Each party has appealed.
The record is voluminous and we will epitomize the facts so far as they may be necessary for the understanding and decision of the questions presented to us.
Mary von Herberg will be referred to as appellant and John G. von Herberg as respondent.
The parties were married in the year 1911. There were born to this union six children, whose ages were at the time of filing the divorce complaint March 29, 1934, as follows: Philomene, 21; Charlotte, 19; Josephine, 17; John, 16; Miriam, 12; and Rita, 10 years of age.
August 27, 1934, von Herberg and wife entered into a written agreement as follows:
'von Herberg
v.
The interlocutory decree of divorce was entered August 28, 1934. It provided:
'2. That the plaintiff be, and hereby is, given the care, custody and control of the minor children, Charlotte, Josephine, John, Marian and Rita. * * * '4. That the defendant pay to the plaintiff herein as support money for herself and the minor children the sum of $750 per month beginning September 1, 1934. * * *
'7. That the defendant pay the actual tuition and cost of books and all fees incident to the attendance at the University of Washington of the two girls, Philomene and Charlotte for the school year beginning September 1, 1934, and shall pay said tuition and expenses so long as the said girls shall be in attendance at the University of Washington. That after the school year beginning September 1, 1934, the defendant shall pay all costs of tuition, fees, charges and book expenses for the three girls, Philomene, Charlotte and Josephine in attending the University of Washington.
'8. That the defendant defray all expenses of the minor son, John, in a school to be mutually agreed upon between the plaintiff and defendant, and in the event that the said plaintiff and defendant are unable to agree upon a school then the said school shall be fixed in turn by Frank S. Bayley and Jay C. Allen.
'9. That all provisions herein with respect to any of the minor children shall be, and hereby are, subject to review and to the further order of the Court.
'10. That the defendant herein shall have the right to see the said children at all reasonable and seasonable times and by agreement of the parties hereto shall have the right to have the children with him.
There was no appeal from the interlocutory decree.
February 27, 1935, appellant filed a petition for a modification of the interlocutory decree. The petition was based on the allegation that the decree was entered through fraud practiced by the defendant. The petitioner then prayed that the interlocutory decree be modified and supplemented by having the property mentioned described and defined, and that the court make division of the pieces and parcels thereof as were capable of division.
On the same day that the petition for modification was filed, the court signed an order to the effect that respondent should appear March 13, 1935, and make a '* * * complete disclosure of all and every kind of property owned by the parties hereto as a marital community on the 28th day of August, 1934, and further to show cause if any there be why he should not at said time account to the plaintiff for any and all of such property which might have been sold, exchanged or otherwise disposed of between August 28, 1934, and the date of said hearing and to further account for the rents, issues and profits of said properties between said dates.'
March 12, 1935, respondent filed his answer to the show cause order. March 6, 1936, the final decree was entered. That decree dissolved the bonds of matrimony, and then stated:
'Ordered, that so much of the interlocutory decree heretofore entered herein as is involved in the petition for modification so filed by the plaintiff, that is to say, the said interlocutory decree except as to Paragraph 11 thereof by and the same is hereby confirmed; the court, however, because of said petition for modification of paragraph 11 of said interlocutory decree reserves and preserves jurisdiction to consider said petition notwithstanding this final decree of divorce, if the court otherwise would have jurisdiction to entertain the same, and to enter such supplemental order or decree with reference to the matters herein set forth as the court may upon the hearing thereof determine should be entered and that the entry of this decree shall have no affect on the court's jurisdiction so to do, it being stipulated in open court between defendant and plaintiff that the entry of this decree shall in nowise affect the court's jurisdiction or divest it of any jurisdiction which it might otherwise have; it is further,
'Ordered, by and with the consent of the parties that the defendant shall within ten (10) days from this date furnish to the attorneys for the plaintiff a list, schedule or statement of the community property of the plaintiff and the defendant as of August 28th, 1934, showing any and all changes which may have occurred in or to said property list and together with any encumbrances existing against any items thereof.'
The petition for modification was first brought to the attention of Honorable J. T. Ronald, superior court judge, who made an order of reference. This order provided for the appointment of S.E. Hoover as a referee. The referee was ordered to:
'* * * examine into and to report to this court as to all properties of whatsoever kind, character or description as stood in the name of or were the property of either John G. von Herberg or Mary E. von Herberg or the community composed of John G. von Herberg and Mary E. von Herberg on the 28th day of August, 1934, and...
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