*1 En Banc. 33933. June [No. 1958.] Sunny Respondent, Florence Decker, Ira James Decker, Appellant. 1 1Reported P. 332. in 326 *2 & for
Wright Wright, appellant.
Pemberton & Orloff, for respondent. is a J. This contempt proceeding exwife
Finley, her exhusband to with a compel of comply provision divorce decree which him to certain commu- required nity debts incurred prior to divorce.
The basic question presented whether the constitu- tional against prohibition imprisonment I, for debt (Art. 17) bars trial court § from using contempt powers to enforce imprisonment compliance with the aforemen- tioned of the divorce decree. provision
The trial court the fact that emphasized debts part agreed orally by parties. upon mem- In his
settlement, judge opinion, dictum the trial relied orandum prop- proposition Robinson, for the infra, Robinson agreements erty con- not are enforceable settlement grant tempt; requested relief he refused appealed. exwife. She has considerably presented than problem more involves noncompliance order. fact with
the mere affront prompts matter of an considerations other than the — dignity in itself is serious of the court which Society disputes enough. in marital has a vital interest enforceability adjustment the courts. The their custody, decrees as public policy, problems particularly, serious involves simple expedient resolved which should automatically referring previous decisions somewhat weighed and other courts. Precedents must be of this or They merely nu- noted or tallied are not evaluated. *3 against merically, particular proposition. noses, for or against prohibition believe constitutional We imprisonment for relates to run-of-the-mill debtor- debt arising, relationships extent, to some out of tort creditor basically principally, matters contractual out of claims, but judgment of the court is cases, In nature. such owing merely amount not an declaration of an involving pay. relations ali of domestic order to Problems together mony, support payments, settlements, normally therewith, connection do not orders in with court category. (But In see re Van fall into debtor-creditor Corrigeux Corrigeux, infra, v. for cases Alstine, infra, relationships present in di were in which debtor-creditor actions.) vorce fifty years in this state for over It been clear bas support payments arrearages do not meaning constitutional debt within
constitute (Art. 17.) support § prohibition. I, Provisions as to con- simply specific decree the hus- a divorce tained in legal duty wife or children. In re Cave, his band’s
459 (1937), 627, P. 70 Haakenson Coldiron infra; 190 Wash. (2d) (1954), 565, 45 Wn. 294; Valaer v. Valaer provisions However, in cases were 326. wherein clearly spelled but not characterized as ali or were mony support, our are conflict decisions briefly point, necessary analyze At this it is several bearing significant of this court which have decisions problem at hand. (1898), ex 324, In State rel. Ditmar 19 Wash. v. Ditmar pay 53 Pac. the divorce decree the husband to ordered mortgage aoff the homestead; the court awarded the separate property a lien wife security. on the as her husband’s obey The husband refused to proceedings contempt decree, and the wife commenced against finding him. court, The trial after that the husband ability pay, imprisoned had him ordered until he paid mortgage. appears opinion off the from the court’s affirming the action the trial court that the main conten- appeal tion the made on husband was that the ex- wife’s remedy clusive was to enforce her lien.
In re Van Alstine Pac. Wash. 348: The cross-complained sued divorce; wife for the husband alleged co-conspirator annulment and that the wife and a procured large money through sum of from him granting fraud. the decree annulment to the hus- co-conspirator repay band, the court ordered the wife money. comply did not When with the court order, sought compel them the husband con- tempt proceedings. appeal, On this court said that jurisdiction repayment court had no to order money procured fraud; that this was a debt within *4 provision, contempt the constitutional would not lie to payment enforce thereof. (1901),
In re infra, Cave is the landmark case in which alimony court held that not a this debt within the mean- ing provision. of the constitutional Superior (1933), ex rel. Ridenour v.
State Court (2d) parties agreed 152, 24 P. 418: The Wash. had ato written, decree in- property settlement, the divorce which provided corporated The settlement reference. periods monthly specified time, payments wife for employ- relating permanent specified her conditions on possibility cast on the decision, this court doubt ment. In its through contempt proceedings property enforcing settle- Specifically, provisions decree. in a divorce ment contained incorporation reasoning of an that the of the court was agreed property not a suffi- settlement, reference, was contempt adjudication lie so that would cient following opinion contained the enforce it. But the by contempt proceedings, enforceable “To be statement: order a definite and unconditional there must be (Italics ours.) alimony as such” (1934), Lang Superior Court 176Wash. ex rel. v. State property agreed parties had to a 237, the 472, 30 P. incorporated adopted and the court had settlement which by attaching provided it to the decree. settlement fifty monthly payments of dollars husband should had of twelve hundred dollars to the wife until the sum payments paid; continue until thereafter, should been eight paid dollars had either an additional hundred been remarried, occurred first. or until the wife whichever provision treated court found that this been trial property court as a settlement. and the divorce finding, appeal, there said, we was Because of that provision. The lan- construe the settlement no reason to empha- guage quoted Ridenour case was from the above property sized, and the court held that settlement by contempt. not enforceable Superior Court 193 Wash. ex rel. Foster
State decree The divorce set out division of 99, 479: provided parties’ that the husband should payments of one thousand dollars to make semi-annual years. appeal, On this court concluded for three wife part that the a matter of law were as contempt and held that settlement would citing supra, payment, Ridenour, enforce not lie to authority. Lang, supra,
461 In Davis v. Davis 130 P. (2d) 297, (2d) 15 (1942), Wn. 355, the divorce decree had ordered the husband fees, On amounting appeal, the wife’s attorney $175. court said: allowing are of the that the reason opinion
“We enforce its court to to its aid bring contempt proceedings decree directing applica- payment equally fees and to a decree directing attorney’s ble suit money.” of the Ridenour case, as such” “alimony language Davis
swpra, limited; was and the strictly opinion, supra, emphasized that judg- a normal debt situation in a ment determines merely owing, an amount but that divorce action the court has to order a pay.
Corrigeux Corrigeux (2d) (2d) 343: divorce decree the husband provided should make month to the payments wife until per $42 the sum of $1,516 had Though been this has the paid. earmarks of a support provision, court found that actual for the basis had a loan provision been from the wife to the The divorce decree was, therefore, husband. merely determination of an amount normal owing debt —a situation —and did not lie to contempt enforce payment.
State ex rel. Adams v. Court Superior (1950), 36 Wn. 868, 220 P. 1081: The divorce court inserted in and in prayer the court order a complaint pro- vision the husband to make requiring monthly payments of fifty dollars to the wife until two thousand dollars been The husband did not paid. the divorce appear action, and no notice of the amended complaint him. On the court held that appeal, the lack of notice of an husband deprived opportunity be heard on the the amended and that question presented complaint, this amounted to a lack of due process; accordingly, the decree was not enforceable by contempt. But, decision, its reaching majority opinion specifi- disavowed the as such” cally “alimony Ridenour supra, saying: case, language.clearly import of the “It is if.the:fair sufficient alimony or ,the was for award indicates .intended the-ri.court nn . . .
¿maintenance.” holding vigorous the lack dissent to There was a jurisdiction deprived trial court notice of. additional complaint. Inherent in amended an order on the to enter *6 Understanding actions in that divorce is the the dissent párties; that property of the interests 'riióré than the volve manifestly its interest public involved is the the children; that proper of thé wife statutory deprive of its pleadings the court cannot their through awarding public duty to-protect'the power ail'd alimony, discretion, the situation sound in the trial court’s if; award. warrants'subíi (2d) (1950), 511, 225 P. Robinson v.
In Robinson property provided all (2d) that decree 411, the divorce given specifically should be wife developed- that a Federal later the husband. community. Under due to the refund was tax income provision, entitled to husband the above terms of signed by “consent,” a deliver refused to the wife it, but use the-refund as allow husband would her, which property. asked the court to separate The husband his person delivery appoint execute compel suitable or way supra, by noted, As the wife. the “consent” contempt not lie to enforce will that dictum, this court said quoted opinion however, property settlement; fa- Annulment, vorably as follows: on Divorce Nelson “ adjust power has the that the court the extent ‘To require rights its it party act of the either out, carried mandates be conveyance by representative making directing of a ” refuses to it.’ fails or court if entitled to the husband was hold that on to went The court requested relief. Berry (1957), 158, 310 P. 223: Berry 50 Wn. provision ordering contained decree per cent of the net income twelve the wife husband yeár. pro held -the five thousand dollars each We above support, parties: had vision was one for so because Accordingly, contempt proceedings denominated were it. payment by appropriate to enforce the husband.
The landmark case of re Cave 26 Wash. briefly above, 66 Pac. mentioned warrants further questions presented: (1) discussion. Two were whether Washington pay- the courts of had to order the alimony decrees; whether, ment of in divorce as- suming authority, the courts had the constitutional alimony through contempt to enforce imprisonment. questions The court answered both respect question, the affirmative. to the second With merely country said that it is well settled in this meaning not a debt within the of constitu- prohibitions against imprisonment tional for debt. With respect question, recognized to the first the court that there express statutory granting was no authorization for ali- mony legislature decrees, in divorce but noted that the given express authorization to divide the *7 parties. The court continued: upon
“There are no restrictions the court as to the manner may disposition. disposed lump of such of sum, in or by monthly installments subsequently otherwise, or and lump disposing sum, reduced to a . . . This method of property parties, alimony of the of the call it or whatever you recognized by will, name has been this court in a . . . number of cases: distinctly, recognized “In all these cases the rule disposition property the court should make such of the as might appear just, and whether it was denominated ali- mony property, or division the the effect was the same.” (Italics ours.) Wn, (1955),
In Loomis v. Loomis 288P. again clearly 235, the court sustained the of trial alimony statutory language under courts to award similar supra, Cave, In re to that in force when was decided. similarity prop The inherent between and erty emphasized by foregoing settlements is the decisions. Fundamentally, marriage prob- most decisions relative to recognize duty protect
lems the that the trial has to interests, of; public the in such the wel- matters, as well as parties usually duty fare of the this means the to see —and adequately supported. that or children are wife .This duty specific by statutory language following made requiring the courts to make disposition parties, “. . such of the separate, appear just either equitable, or and as shall having regard respective merits of the by in left to condition which will be such annulment, to
divorce or whom acquired, imposed and to the burdens was' children, it for the benefit of shall custody, and education costs, and for marriage.” such RCW 26.08.110. the minor children of language marital-relations decisions in some Certain unduly appears emphasize and other courts this rights of their in the settlement contractual agreement by or contract. We should difficulties marital that a trial court waives abdicates to conclude be slow incorporates duty public it embodies or when its agreed parties’ settle- in its decree reference accept large, By does settle- trial court ment. parties simply agreement of their because ment provisions just rights, its seem because but contractual public policy, all equitable of sound furtherance factors, being far courts refuse ex- so considered. critically or nomenclature the technical amine agreement provisions a settlement involved particular are in fact determine whether duty sup- support provisions, dictated husband’s duty public their port, courts falter homage contract. according freedom of undue Bldg. v. Blaisdell Ass’n 290U. S. Loan & In Home *8 231, 88 L. R. 1481, A. Chief 413, 54 S. Ct. Ed. 398, 78 L. guarantee Hughes constitutional to the discussed Justice page quoted previ- 437, he from a On of contract. freedom supreme case: ous United States “ court that the of this interdiction law settled is the Tt obligation impairing the contracts does not of statutes prevent exercising powers from are vested State promotion weal, it for the or are neces- the common sary general good though public, for the contracts previously thereby may entered into individuals between power, be affected. This ramifications which in its various sovereign police power, is known as the is an exercise of the right protect lives, health, morals, Government to general people, para- comfort and and is welfare ” any rights mount to under contracts individuals.’ between Hughes page Also, at Chief Justice said: only provision qualified “Not constitutional measure of control which the State retains over remedial processes, to possess authority but State also continues to
safeguard (Italics ours.) people” the vital interests itsof
It is clear to a divorce action cannot public responsibilities foreclose interest in their marital agreement prob a contract or an of settlement. Marital something lems involve more fundamental than nomencla rights. ture and technical contract There is no sound reason allowing away duty support a husband to contract his to guise “property his wife and children under the of a settle agreement.” ment contempt proceedings proper
We hold that are a remedy respect to enforce the court’s order with to previously settlements —whether or not the settlement agreed long so as it is embodied or incor porated by reference in the divorce decree. The husband may imprisoned complies until he with the order, court’s (1) unless: he can that he show does not have the means comply order, with he can show particular provision sought enforced has no reason duty support able relation to his his wife child and/or ren.2 2Bradley Superior (2d) 509, Court Cal.
presents example provision' which, of a in a settlement although sounding support, even in terms of had no reasonable relation duty agreed property to the husband’s his wife. An settlement incorporated had been required his net husband into the divorce decree. One of the approximately forty per the husband to the wife cent of every year prior litigation, each income thereafter. In sought modify have labeled so as to it changing construing provision, with circumstances. the courts primarily by, referred characterization to it and the
466 reaching questions a decision the factual on thus Judge
presented, courts
heed the advice of
Chad-
should
concurring
Ruge Ruge (1917),
opinion
97
wick in his
in
(which
51,
“Society concern that a tie that is should itself to see persons each does not broken between intolerable to other revenge a the the one become or mill stone club of and hate in hands of a the neck of the other.” about power question
There should be no as to the authority incorporate in its decree divorce court a like the one the to enforce which exwife seeks through contempt proceedings in the case at bar. opinion in Arneson v. Arneson power the of discusses regarding handling divorce courts the proceeding, stating: parties debts of the to a divorce court, decisions, “This its former is committed to the (1) propositions: power, that the has the deter- mining spouses, property the for division the available between logically necessary that tech- to have recourse to against nique of the accountant liabilities who balances (2) [citation]; worth, find net . . . that the assets to position parties court, a the in which the with view to will property placing apply the of left, some of beyond property reach of creditors whose claims other (as mortgage yet payment of a have not matured children), . a as a home for the . . house to wife (3) parties, can, between the [citation]; that the court as upon parties one of them as a saddle the liabilities of compensating facilitate the division of the values element to unit-type property, [citation]; . . power property, practically unlimited over court has rights parties reference to exercised when with of exercised and their children. Where perspective, up- reasonably within this we have court was part property accordingly, of, parties; held it to be intent settlement and When the husband change subject to in circumstances. not modification payments, in his both the husband and the defaulted sought payment through to enforce The wife wife had remarried. circumstances, proceedings. contempt at the the court recoiled Under those complied. imprisoning prospect the husband until he contempt proceedings would not lie to enforce court held 154 A. L. R. 483-489 for a discussion of See settlement. many previous cases. California in the creditors held directions decree for.the being rights as as incidental to the , between themselves. U have felt the result of the decree was “Wherever we reasonably property, incident as be- division of parties, tween the we have looked the form of treating literally surplusage used, words enforcible as to third and have the trial sustained *10 powers court. The trial court needs to meet the broad (Addi- variety presented infinite factual to situations it.” ours.) tional italics superior hearing, In the court the trial court made finding no as to whether there ais reasonable relation be provision sought through tween here to be enforced contempt proceedings duty respondent sup and the to port appellant. question things fact, This is all con including possible sidered, the factor of defenses to the Respondent ques debts husband and wife. did not validity any nothing tion the of the and debts; there is appellant any in the record to indicate that he and have any bona defenses If, or all of the remand, debts. fide respondent appellant that he show and have valid any defenses to of the debts, then he will have established pro tanto relative to the duty debts bears no reasonable relation to his support appellant. Superior
The cases of State ex rel. Ridenour v. Court, supra; Lang Superior supra; ex rel. Court, State State Superior supra; ex Court, rel. Foster v. and cases, other they or not, whether discussed herein in so far as are incon- expressed herein, sistent with views are overruled. The order trial court should reversed, be and the proceedings case remanded for further in accord with views expressed herein. It is so ordered. and Foster, JJ., concur. Weaver,
Donworth, Rosellini, (dissenting) J. trial court has no author- —The Mallery, ity imprison spouse pay a divorced for failure to a debt n owedto a party third two reasons. authority spouse trial to order a The court no
pay Palmer, In Palmer v. debt. 475, this said: statutory proceeding, “A divorce action is a jurisdiction no that cannot inferred from a court has broad [Citing interpretation case.]” of the statutes. Supp. § 997-11] statute, The Rem. [c/. ROW 26.08.110 power confers this the court: judgment making “. . entered . . . shall be parties, disposition of the of the either com- munity separate, appear just equitable, as shall having regard respective merits of the to- left such divorce or the condition in which will be party annulment, to the whom was. imposed upon acquired, it for the benefit burdens children, ...” spouse to a third to order a debt language statute, cannot inferred from this authority upon cannot confer itself its own this court statutory quoted is not decisions. proceeding liquida- action into a for the convert a divorce third-party tion of debts. *11 Arneson, so held in Arneson v.
We (2d) 1016,in which we said: bankruptcy, assign- probate, receiverships, “Divorce, statutory proceedings,
ments for the of creditors are benefit pre- jurisdiction are and the of the courts by applicable legislative enactment. In them the- scribed any power can inferred not have not be court does question. pow- interpretation from a the act broad of receiverships probate can not be ers of the court in imported act. or not the court into the divorce Whether jurisdiction at deter- bar, in the case must be exceeded its act of 1949. mined of divorce from empowered act the court exercise in the “Nowhere statutory proceedings. peculiar prerogatives to other jurisdiction ready proper a limitation on test of One by determining- applied case, can be court, in a necessary parties proper the action. are the who and/or parties a action due spouses made to divorce are “The The children process, made one statute. and the state is they subject action, have as a but, are not legislature and made the chief concern of both been the courts. Other parties persons made can not be by any statutory inter- notice, nor can form of action elementary, appear then, there vene therein. would rights process as to the a divorce action is no due of law in judgment spouses. con- can neither of creditors of the clusively rights nor made available determine their be any provisional remedies. their for as basis behalf provides the court it, for divorce act “Since the nowhere liquidation compel for the benefit has no any Nor can a divorce decree. creditors as an incident to of the consolidated with having purpose, statutory proceedings, that as its be Nothing trial. a divorce action for authorizing deprive the court to divorce act be found the tions rights prefer exemp- spouses creditors, claim their compromise claims, take homesteads, bank- and/or ruptcy, limitation, contracts, invoke statutes rights. enjoy Their in the their several interests property by them therein for themselves, course, determined, as between are, of imposed subject upon decree, and are burdens scope
purposes of the divorce within jurisdiction, common-law rules of we know act. As to the of none which upon empowers the court encroach civil rights simply persons are to a ac- because tion.” imprison asks the court to the husband if he
The ex-wife unliquidated third-party claim a creditor, does not judgment. He was not and could not has no be who right and has no in the decree. to the divorce action brings may it, ever debt, action for if he barred His own any limitations, and, event, will be statute subject defenses. to all valid give judgment cannot the creditor
The divorce court provisional remedies available to him. Even nor make the ruling spouses, there can no their between any purpose other than as an incident to indebtedness disposition property. of their *12 debt, court’s order issue that was not the court in a action, not before and could any void, hence, cannot under and, circumstances sustain contempt proceeding. The constitutional objection contempt pro- if there a debt, is valid. Even we assume is ceeding it: action, it and, hence, to a privy owed There from the cannot for is no alimony. escape appli- I, constitution, Art. of the state cation of because'no § debt, artful, however invoke the statutory definition in this case. for , I dissent. J.; J., Ott, J., concur with C.
Hill, Mallery, 18, 1958. Petition denied. rehearing August Department 34487. Two. June 1958.] [No. the Estate Mabel C. Deceased. In the Matter of Gordon, al., et Morris Appellant, Gordon, Alex I. Preston Respondents. 1 1Reported 340. in 326 P.