Jones v. Jones

296 P.2d 1010, 48 Wash. 2d 862, 54 A.L.R. 2d 1403, 1956 Wash. LEXIS 432
CourtWashington Supreme Court
DecidedMay 10, 1956
Docket33187
StatusPublished
Cited by14 cases

This text of 296 P.2d 1010 (Jones v. Jones) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Jones, 296 P.2d 1010, 48 Wash. 2d 862, 54 A.L.R. 2d 1403, 1956 Wash. LEXIS 432 (Wash. 1956).

Opinions

[863]*863Finley, J.

This is a domestic relations case.

In 1953, plaintiff wife instituted an action for separate maintenance. On April 7, 1954, defendant husband filed an amended cross-complaint for annulment and alleged that, at the time of the marriage of the parties, he was not divorced from a previous wife.

As a preliminary matter, the plaintiff wife was awarded temporary attorney’s fees of one hundred dollars, and was awarded one half of the net monthly earnings of the husband as temporary support money. Up to the date of the trial of the annulment action, the husband had paid only the sum of seventy-five dollars; consequently, the delinquent monthly payments amounted to a sizeable sum. The parties agreed that the question of the amount of the accrued unpaid support money would be submitted to the court for the entry of judgment thereon in connection with the disposition of the annulment action.

The trial judge, finding that the marriage was void db initio, entered a decree of annulment. On conflicting testimony, he found that the husband’s net monthly earnings were approximately $480.79. He entered judgment for the wife in the sum of $1,923.16, representing the accrued unpaid portions of the husband’s net earnings previously awarded to her as temporary support. The wife was awarded the sum of $775 in lieu of a division of the property of the parties, and to secure payment thereof a lien was impressed upon the husband’s Jaguar automobile and his sailboat. Custody of the minor child of the parties was given to the wife, subject to reasonable visitation by the husband at the wife’s home under her supervision and control. War bonds in the amount of four hundred dollars and a two-thousand-dollar endowment insurance policy on her own life were awarded to the wife, as well as court costs, five hundred dollars additional attorney’s fees, fifty dollars per month for support of the minor child, and one hundred fifty dollars per month alimony. The alimony was granted for a period of fourteen months from the date of the decree of annulment. The court further ordered that the husband should keep up a fife insurance policy on himself in the amount of twelve [864]*864thousand, dollars, maintaining the wife and child as the beneficiaries thereof until the child should become eighteen years of age. The husband has appealed.

We are convinced that the only question raised by appellant’s assignments of error which merits consideration on this appeal is whether statutory authority exists in this state for the allowance of the monthly alimony payments for the period of fourteen months, commencing after the entry of the decree of annulment in which the marriage was held to be void ab initio.

It has been said, and rightly so, that alimony was unknown to the common law; that it is a creature of statute. No citation of authority should be necessary for the proposition that alimony in divorce and annulment cases involves a question of public policy peculiarly within the province of the legislature, and that the legislature has the power and can authorize the courts to grant alimony in divorce and annulment cases. II Vernier, American Family Laws, 65 § 73 et seq., reports that in a number of states alimony is awarded by the courts in connection with the termination of void marriages through application of the general divorce statutes of such states. In I Vernier, supra, § 53, it is also indicated that the legislatures of several other states have enacted specific statutes relative to annulment, which clearly authorize the courts, in their discretion, to-award alimony in cases of annulment of a marriage void ab initio.

Prior to the enactment of chapter 215, Laws, 1949, p. 698, this court recognized the general rule that, where the husband seeks annulment of a marriage on the ground of a prior marriage of the wife, the latter is entitled to alimony pendente lite until the invalidity of the marriage is clearly proved. Davis v. Davis, 12 Wn. (2d) 499, 122 P. (2d) 497. In the early case of Arey v. Arey, 22 Wash. 261, 60 Pac. 724, the wife brought an action to annul an illegal marriage on the ground of nonage, and the court held that she was entitled to an allowance of suit money and alimony pendente lite.

In some instances of legal import, the general statement has been made that the granting of alimony is dependent [865]*865upon the prior existence of a valid marriage contract; but, as in the case of many broad, sweeping legal generalizations, this one is subject to considerable critical analysis.

In Johnson v. Johnson, 295 N. Y. 477, 68 N. E. (2d) 499, the New York court of appeals stated:

“True enough, the prime evil which the commission sought to remedy was the unhappy plight of the innocent wife married to a bigamist husband; under the law as it then existed, she could terminate this undesirable and illegal relationship only at the cost of relinquishing all claim to support, while the offending husband could, at his pleasure, avail himself of the invalidity of a marriage — void because of his own misdeed — and slough off the financial responsibilities which he had voluntarily assumed. Nevertheless, the commission obviously did not desire to restrict the application of the statute to that situation alone.”

In Fowler v. Fowler, 97 N. H. 216, 84 A. (2d) 836, the supreme court of New Hampshire held that the statutory authority to award alimony to a wife in an annulment suit is not affected by the fact that the marriage is void ab initio, and said:

“The authority of the court derives from the statute, and is in no way made to depend upon the existence of a marriage which was merely voidable, rather than void. . . . Common law principles which might produce a different result do not apply.”

In I Vernier, American Family Laws, 266, § 53, the author recognizes that there is some difference of opinion relative to the granting of alimony in annulment suits. However, he also recognizes the facts of life — that alimony is often justified upon practicable moral or social considerations, or upon equitable grounds in annulment cases. The author states:

“The nature of annulment being a restoration of the parties to their former status, their rights of property existent at the time of marriage must be protected. But the mere restoration of rights would, in many cases, not guarantee justice to the parties. The marriage, although voidable, may have given rise to effects that cannot be equitably eradicated by a mere revival of the pre-marital status. Broadly speak[866]*866ing, the same considerations may be present in marriages terminated by annulment as through divorce, and the same rights and remedies would seem to be applicable.”

The above-quoted authorities are of some interest and significance relative to the wisdom inherent in any legislative judgment that alimony should be granted on a fair and equitable basis in the discretion of the courts in annulment cases. Admittedly, the references are not conclusive authority, bearing upon the question of whether our state legislature authorized the granting of alimony in annulment cases by enacting chapter 215, Laws, 1949.

In the recent case of Loomis v. Loomis, 47 Wn. (2d) 468, 288 P.

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Jones v. Jones
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Bluebook (online)
296 P.2d 1010, 48 Wash. 2d 862, 54 A.L.R. 2d 1403, 1956 Wash. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-wash-1956.