King v. King

468 P.2d 464, 2 Wash. App. 386, 1970 Wash. App. LEXIS 1139
CourtCourt of Appeals of Washington
DecidedApril 17, 1970
DocketNo. 89-40539-3
StatusPublished
Cited by4 cases

This text of 468 P.2d 464 (King v. King) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. King, 468 P.2d 464, 2 Wash. App. 386, 1970 Wash. App. LEXIS 1139 (Wash. Ct. App. 1970).

Opinion

Munson, J.

Daniel O. King, defendant, appeals from an order granting a divorce to Lou N. King.

The Kings were married in July 1961. In January 1966, [387]*387defendant went to Vietnam as a civilian construction worker. His initial term of employment expired in July 1967. In June 1967, plaintiff instituted the present divorce action. Shortly thereafter plaintiff became seriously ill and unable to work. In August 1967, an ex parte order pendente lite was entered requiring defendant to pay plaintiff $500 per month support. The trial, originally set for November 17, 1967, was postponed upon defendant’s motion until February 2, 1968 on the ground of defendant’s unavailability. In December 1967, defendant’s counsel moved for a modification of the August support decree. The motion was conditionally granted subject to defendant’s payment, within 20 days, of $1,000 to be applied on unpaid accrued support in the sum of approximately $2,500. Defendant complied.

Defendant failed to appear at the trial on February 2, 1968; his whereabouts were not made known to the trial court. Interrogatories served upon defendant’s counsel on January 5, 1968 were still unanswered. On February 9, 1968, defendant’s counsel told the court answers had been prepared but were unsigned; he failed to advise the court as to defendant’s whereabouts. Thus, the only evidence before the trial court was the uncontroverted testimony of Mrs. King. On February 9, 1968, the trial court rendered its oral decision wherein plaintiff was granted a divorce and the property divided on an alternative basis.1 On February [388]*38823, 1968, findings of fact, conclusions of law and a decree were entered in accordance with the oral decision. Defendant did not exercise the option accorded by the first alternative.

Defendant’s assignments of error present three issues: (1) whether the uncontroverted testimony of Mrs. King was sufficient to support the trial court’s findings of fact, particularly Nos. 4, 6, 8, 10 and 13; (2) whether the property division alternatives were improper because (a) defendant’s alleged presence in Vietnam at the time of entry of judgment precluded him from taking advantage of the first alternative, and (b) the first alternative expired prior to the 30-day time limit allowed for appeal thus, in effect, shortening the time for appeal in contravention of CAROA 33; and (3) whether the trial court’s oral decision contains such prejudicial remarks as to require a new trial.

Although the uncontroverted testimony of plaintiff is not that of a disinterested party, her interest in the outcome of litigation merely affects the weight of her testimony not its probative value if believed by the trial court. McLaren v. Department of Labor & Indus., 6 Wn.2d 164, 107 P.2d 230 (1940); 2 Conrad, Modern Trial Evidence § 1131, at 298 (1956). Therefore, her testimony standing alone, uncontroverted and apparently believed by the trial court, supplies sufficient evidence to support its findings and such findings will not be disturbed on appeal.

We find no evidence to support defendant’s contention on this appeal that he was in Vietnam at the time of the trial or entry of the decree and was thereby precluded from electing the first alternative. His initial employment contract expired in July 1967; a 6-month voluntary extension would have expired prior to the date of trial. No showing was made of any extension of his employment contract. He could have been in Richland under the instant record.

An appeal suspends the time allowed in the judg[389]*389ment or order appealed from for the performance of a condition which affects a party’s substantive right or obligation. As a result, the time for performance of the condition in the judgment or order begins after the appellate court’s decision becomes effective. Borrow v. El Dorado Lodge, 75 Ariz. 218, 254 P.2d 1027 (1953); 4 Am. Jur. 2d Appeal and Error § 363 (1962); 28 A.L.R. 1029 (1924). This rule applies even though the time for performance of the condition expires prior to the expiration of the time for appeal and where the appeal is not taken until after the expiration of the time for performance of the condition. Nakdimen v. Brazil, 137 Ark. 188, 208 S.W. 431 (1919).

In Washington the disposition of property by the trial court will not be reversed on appeal except where there has been a manifest abuse of discretion by the trial court. Rehak v. Rehak, 1 Wn. App. 963, 964-965, 465 P.2d 687 (1970); Mayo v. Mayo, 75 Wn.2d 36, 448 P.2d 926 (1968); Root v. Root, 64 Wn.2d 360, 391 P.2d 962 (1964).

In this case the trial judge had before him only one party who was supporting her two children by a prior marriage; in ill health and unable to work; and, in desperate financial straits due to defendant’s failure to make his support payments. In contrast, the evidence shows defendant had been in civil employment in Vietnam earning $1,550 per month, tax free, plus travel and bonus pay; had requested and received a continuance because of his unavailability for trial; and, had not appeared at the trial which had been set at his request.

While a trial judge does not have unfettered freedom to dispose of a party’s property, Rehak v. Rehak, supra, he is not expected to expunge himself either of his common sense or his life experiences upon ascending the bench. It is evident from the record that the experienced trial judge believed a quick cash settlement would greatly reduce the posttrial trauma of these parties and allow them to readjust to society without the necessity of further legal proceedings. In addition, such a settlement as set forth in alternative (1) would have been favorable financially to both [390]*390parties at that time. Defendant obviously would save money by accepting it. Plaintiff would have been able to save the community assets from community creditors. It would have relieved plaintiff from future legal proceedings to enforce alternative (2); and such proceedings could reasonably be anticipated from defendant’s conduct and attitude disclosed by the record then before the court.

While an alternative division is unusual, it is not without precedent. 27B C.J.S. Divorce § 300(1) (1959); Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950); Kyte v. Kyte, 325 Mich. 149, 37 N.W.2d 784 (1949).

We believe, however, the award to plaintiff of both the sum of $4,200 for her share of the community estate and defendant’s interest in the family home and furnishings, and automobile under the second alternative to be contraindicated under the facts herein. With respect to the rest of the property division, we find there was no manifest abuse of discretion by the trial court.

Therefore, judgment shall be modified to allow defendant 30 days from the date of the remittitur, under the first alternative, to pay plaintiff $7,000 and to convey to her his interest in the family home and furnishings, and automobile.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelly v. COUNTY OF CHELAN
185 P.3d 1224 (Court of Appeals of Washington, 2008)
Kelly v. Chelan County
145 Wash. App. 166 (Court of Appeals of Washington, 2008)
Cordell v. Stroud
690 P.2d 1195 (Court of Appeals of Washington, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
468 P.2d 464, 2 Wash. App. 386, 1970 Wash. App. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-king-washctapp-1970.