Young v. Young

Weaver, J.

Is it error, under the circumstances of this case, to allow plaintiff wife alimony of one hundred fifty dollars per month, until the further order of court?

*498Plaintiff wife and defendant husband, both now fifty-three years of age, were married in 1921. Two sons, one adopted, are grown and self-supporting. At least as early as 1946, the parties separated as husband and wife, although they continued to live in the same house. When their younger son was graduated from high school, in 1952 (he is now in the armed forces), “the parties established new and separate domiciles and have lived entirely separate and apart since that date.” During this time, defendant contributed one hundred fifty dollars per month to plaintiff’s support.

During marriage, the parties accumulated community personal property valued at approximately $86,341.80, the income from which has averaged in excess of two thousand dollars per year, over the past five years. During the same period, defendant’s yearly income has averaged more than nineteen thousand dollars (before income taxes) from his profession.

Undoubtedly realizing that their marriage would eventually end in divorce, plaintiff decided to prepare herself for future employment. In the fall of 1948, she took an intensive training course in practical nursing and passed the state board examinations in June, 1949. Thereafter, she worked in a local hospital and, at the time of trial, was employed in the office of a pediatrician. Her “take home” pay is $163.10 per month. During her employment, and until the parties moved to separate domiciles, plaintiff continued to do the housework and the laundry for her husband.

The trial court (a) granted plaintiff a divorce; (b) divided the $86,341.80 community personal property between the parties; (c) required defendant to pay plaintiff wife one hundred fifty dollars per month alimony, until the further order of the court; and (d) granted plaintiff an attorney’s fee and costs in the event of an appeal to this court.

It is not necessary for us to detail the facts leading to the divorce which was granted to the wife. The record supports the conclusion that plaintiff is blameless and that the divorce is the result of defendant’s actions and conduct.

Defendant husband appeals only from that portion of the *499decree requiring him to pay alimony of one hundred fifty dollars per month for an indefinite period.

The allowance of alimony to a wife, even though blameless, is neither a matter of punishment nor of sentiment. As Judge Chadwick said, so poignantly, in Herrett v. Herrett, 80 Wash. 474, 477, 141 Pac. 1158 (1914):

“When husband and wife have come to the divorce court and measured their shattered bonds in money, the law will not longer treat the relation as one of sentiment. It must be measured by the necessities of the one party and the ability of the other to meet that necessity (Holcomb v. Holcomb, 53 Wash. 611, 102 Pac. 653); assuming, of course, that the one receiving the alimony is entitled to demand it, under all the attending facts and circumstances.”

The decisions of this court have not deviated from this criterion. Murray v. Murray, 26 Wn. (2d) 370, 378, 174 P. (2d) 296 (1946); Gordon v. Gordon, 44 Wn. (2d) 222, 226, 266 P. (2d) 786 (1954); Platts v. Platts, 45 Wn. (2d) 853, 278 P. (2d) 679 (1954).

It is apparent, from the facts, that this divorce does not break up a family home; the home had gradually disintegrated and dissolved a number of years ago. The welfare of minor children is not involved, nor is there any dispute over property.

We find the parties in this position:

The wife, on the one hand, has received over forty-three thousand dollars of income-producing property, which, properly invested, will return to her a substantial income. Neither the income nor the principal of this fund can be ignored when considering the necessities of the situation before us. In anticipation of the present situation, she has schooled herself in a trained vocation from which she earns almost two thousand dollars a year, after income taxes. She has good health, except for some minor complaints. Under these circumstances, she will be able to enjoy, substantially, the same standard of living that she had prior to the divorce.

The husband, on the other hand, has exactly the same as the wife. He has an equal share of the income-producing *500community personal property, and the ability to earn a living in his profession.

It highlights the sole problem before us to consider that should the earning power of both cease, their positions would be identical.

The reason for the allowance of one hundred fifty dollars per month alimony to the wife is found in the memorandum opinion of the trial judge. He commented:

“Can it be said that from here on, having attained during the marital relationship, the success that he has, having equipped himself with the aid of his wife, for the profession that he finally embarked upon and having accumulated the estate that has been accumulated here, that what he possesses now as of this moment is his and his alone from this moment on or from the moment that a decree is entered? I don’t think it would be equitable and fair to make or concede that proposition.”

More specifically, the problem is whether the disparity between the training and earning power of the parties justifies an allowance of alimony to the wife under the factual situation of this case.

We have said many times that each case of this nature must necesarily depend upon its own facts and circumstances. Memmer v. Memmer, 27 Wn. (2d) 414, 419, 178 P. (2d) 720 (1947). The allowance of alimony is not governed by a fixed rule. For these reasons, prior decisions are helpful, but not necessarily controlling.

When the physical income-producing property of each party is substantial, and when each party is trained in a profession and has the ability to earn and is earning a living, it is not the policy of the law to give a wife a perpetual lien upon her divorced husband’s future earnings which arise from his personal 'efforts. This is but another way of saying that the necessity for alimony does not exist.

Under facts comparable to those of the instant case, this court, in Lockhart v. Lockhart, 145 Wash. 210, 259 Pac. 385 (1927), discontinued alimony payments to the wife. We are not unaware that the Lockhart case has been distinguished and criticized a number of times (Warning v. *501Warning, 40 Wn. (2d) 903, 906, 247 P. (2d) 249 (1952), and cases cited); but it has not been overruled, and those cases wherein its doctrine was not applied may be distinguished by their facts from this case.

Under somewhat similar circumstances, no alimony was allowed to the wife in Lane v. Lane, 170 Wash. 215, 16 P. (2d) 206 (1932), and in Memmer v. Memmer, supra. In Murray v. Murray, 26 Wn. (2d) 370, 378, 174 P. (2d) 296 (1946), alimony payments were terminated at a fixed date, after the filing of the court’s opinion.

Although the separation of the parties as man and wife has been an accomplished fact for some time, the wife is still subject to the uncertainties and adjustments of a transition period. We, therefore, conclude that the monthly payments of alimony shall cease upon her remarriage or upon the expiration of three years from the date this opinion is filed, whichever shall occur first.

The decree of divorce will be modified to the extent indicated; in all other'respects it will stand affirmed.

Mallery, Schwellenbach, Donworth, and Ott, JJ., concur.