Pollock v. Pollock

499 P.2d 231, 7 Wash. App. 394, 1972 Wash. App. LEXIS 989
CourtCourt of Appeals of Washington
DecidedJuly 24, 1972
Docket941-1
StatusPublished
Cited by31 cases

This text of 499 P.2d 231 (Pollock v. Pollock) 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
Pollock v. Pollock, 499 P.2d 231, 7 Wash. App. 394, 1972 Wash. App. LEXIS 989 (Wash. Ct. App. 1972).

Opinions

Horowitz, C.J.

This'is an appeal and cross-appeal from a decree awarding a divorce to each party,- settling their property rights, providing for alimony to the wife, and áwarding her an attorney’s fee and costs.

Plaintiff, Elden D. Pollock, a widower 53 years old, and his wife, Margaret, a divorcee about 50 years of age, were married in February 1953. Plaintiff was a resident of Mount Vernon, Washington, where he maintained a home for himself and two of his children, 6 and 4 years of age. Plaintiff apparently had a separate estate valued at over $200,000, which he managed from Mount Vernon. Defendant, a resident of San Francisco, California, was employed as a successful home economist at a monthly salary of $400 to $425, plus fringe benefits. She was the mother of a grown daughter from her prior marriage. Her separate estate was a modest one valued at a little over $10,600.

Upon marriage, defendant left her employment and the parties made their home in Mount Vernon for the ensuing 17 years of their marriage. Defendant proved a good housekeeper and hostess, active in Mount Vernon social life. She did an excellent job in looking after the physical needs of the children. The latter grew to maturity during that marriage. In the later years of the marriage, the children became somewhat estranged from the defendant, and perhaps for this and other reasons the marriage became an unhappy one.

[397]*397Plaintiff had informed defendant prior to marriage of his substantial estate. In the earlier years of the marriage, defendant became concerned with her economic security. Plaintiff recognized this and attempted by means of his will and provision for joint accounts to allay her fears. He did not entirely succeed.

About 1960-1961, defendant became alarmed about her husband’s intention to go into a property deal with Safeway Stores, Inc. She felt that in view of his age and ill health, plaintiff was getting into an unduly large and risky lease transaction. To make the deal, plaintiff planned to withdraw the balances of the joint accounts he had provided for her protection, as he testified, “in case something happened to me.” In fact, without asking defendant about the matter, he withdrew $7,000. Defendant felt she had to protect the security promised her. She withdrew approximately $35,000 from the accounts and redeposited the funds in another account in her own name. She then refused to reveal the whereabouts of the funds. Later she invested most of the money so deposited in United States savings bonds. Plaintiff then made other arrangements to raise funds needed for the deal.

In August 1969, defendant, then 65 years of age, separated from plaintiff, then 69 years of age. Following separation, plaintiff sued defendant for divorce. She counterclaimed for like relief. On December 28, 1970, the court awarded a divorce to each party. He divided approximately $383,000 of real and personal marital property. The plaintiff husband was awarded $310,206.42, and the defendant wife was awarded $72,882.90. The latter’s property award included cash and securities totaling $51,405.13, part of which she had inherited from her mother. The court also awarded to the wife $300 per month alimony for a 5-year period, and $4,000 attorney’s fees and costs.

Defendant appeals and plaintiff cross-appeals. Defendant’s assignments of error deal with the propriety of entering the divorce decree in plaintiff’s favor, and with the claimed gross insufficiency of the property and alimony [398]*398awarded to defendant. Plaintiff’s sole cross-assignment of error is that defendant should not have been allowed any attorney’s fee.

Defendant first inferentially contends she alone should have been awarded a divorce. She was awarded a divorce on the ground of mental cruelty and personal indignities rendering her life burdensome. Plaintiff was awarded a divorce inter alia on the ground that defendant had willfully deserted and abandoned him during August 1969 without cause. The error assigned is not argued. The disposition of the case we later make does not tum on whether defendant alone should have received the divorce. The error, if any, is harmless. See Friedlander v. Friedlander, 80 Wn.2d 293, 494 P.2d 208 (1972); Skaare v. Skaare, 52 Wn.2d 273, 324 P.2d 815 (1958).

Defendant’s principal assignments of error rest on her contention that the property division made is grossly inequitable to her. RCW 26.08.110 empowers the divorce court to make “such disposition of the property of the parties, either community or separate, as shall appear just and equitable . . .” DeRuwe v. DeRuwe, 72 Wn.2d 404, 433 P.2d 209 (1967), a divorce case, states the following applicable principles concerning property division:

Although the division of community property need not be exact, but just and equitable (Robuck v. Robuck, 62 Wn.2d 917, 385 P.2d 50 (1963)), with a wide latitude resting in the trial court’s discretion to make the division (Bodine v. Bodine, 34 Wn.2d 33, 207 P.2d 1213 (1949)), more specific principles are available to aid the court in arriving at a just and equitable division in particular eases. First, the court must consider the necessities of the wife and the financial ability of the husband. Hogberg v. Hogberg, 64 Wn.2d 617, 393 P.2d 291 (1964). Then, it should take into consideration the age, health, education and employment history of the parties and their children, and the future earning prospects of all of them. The court should, likewise, give thought to the sources and dates of acquisition of all properties accumulated by the parties during marriage and what properties each brought into or contributed to the community property, along with the [399]*399amounts and kinds of property left to be divided at the divorce. Even when regard is had for the fault of the parties and the wrong inflicted by the one upon the other, it is the economic condition in which the decree will leave the parties that engenders the paramount concern in providing for child support and alimony and in making a property division. Stacy v. Stacy, 68 Wn.2d 573, 414 P.2d 791 (1966).
Although this court will not substitute its judgment for that of the trial court in questions of child support, custody, alimony and division of property except where there has been a manifest abuse of discretion in one particular or another (Root v. Root, 64 Wn.2d 360, 391 P.2d 962 (1964)), we will, if shown some abuse of discretion, correct the decree to ameliorate or remove if possible the inequities fostered by it. Hogberg v. Hogberg, supra; Dickison v. Dickison, 65 Wn.2d 585, 399 P.2d 5 (1965); Stacy v. Stacy, supra.

72 Wn.2d at 408-09.

In making the property division, the court must bear in mind the correct community or separate property status of the property to be divided. If the court does not do so, its division of the property constitutes reversible error. Peterson v. Peterson, 3 Wn. App. 374, 475 P.2d 576 (1970); Fite v. Fite, 3 Wn. App. 726,

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Bluebook (online)
499 P.2d 231, 7 Wash. App. 394, 1972 Wash. App. LEXIS 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollock-v-pollock-washctapp-1972.