Drabe v. Drabe

124 Wash. 451 | Wash. | 1923

Parker, J.

— The plaintiff in this divorce suit, Walter M. Drabe, has appealed to this 'court froth an order of the "superior 'court''for Thurston county,’ wherein the suit is pending, refusing his application to modify a former order of the court awarding to the defendant, Dorothy L. Drabe, as against him, support and suit money pending the action. We have before us a bill of exceptions purporting to embody all of the evidence introduced upon the hearing of the application of the plaintiff to modify the former order. While the evidence is wholly in the form of affidavits of the plaintiff and one of the attorneys for the defendant, no oral testimony being introduced, we do not feel that we are in an as advantageous position as the trial judge was to determine the truthfulness of the defendant’s statements touching the question of fact as to his ability to satisfy the award of support and suit money made by the order sought to be modified; that being the only question here for decision.

It is true that ordinarily this court would have as good an opportunity as a trial court to determine the truthfulness of statements made in the form of written affidavits; but this application was heard before the same judge who heard the original application for support and suit money, and it is possible, or even probable, that he then had some opportunity to personally observe the defendant. Besides, it seems probable that the hearing of this application in the superior court involved in a large measure the issue involved in the hearing upon which the order here sought to be modified was made. There is almost no showing of change in the defendant’s ability to satisfy the award of support and suit money since the making of that award. We do not see our way clear to disturb the trial court’s refusal to modify the order. Its refusal to do so is therefore affirmed.

Main, G. J., Fullerton, Tolman, and Pemberton, - JJ., concur.