Togliatti v. Robertson , 29 Wash. 2d 844 ( 1948 )

Property takes its status as of the time it is acquired, and it so continues until and unless a change becomes effective.

Thus property acquired during coverture is community property. In our cases, where an interlocutory order, which by its terms changed the property concerned from community to the separate property of the parties, came to nothing by reason of a reconciliation or the death of a party, we have held that the property had the same status as it had when it was acquired. This was because the interlocutory order became ineffective and therefore left the property in its original status. Of course, only property existing prior to the interlocutory order was under consideration in those cases, with one exception which I shall mention later.

In the instant case, we have a different factual situation. Here there is no property involved that was acquired prior to the interlocutory order, as in those cases. On the contrary, it was acquired after the interlocutory order was entered. No final decree was ever entered. The status of the property, therefore, was not passed upon by the court. It therefore takes its status, as does all property not disposed of by a court, as of the time it was acquired. The question is: What is the status of the earnings of a party to a divorce action after the entry of the interlocutory order?

Divorce being a statutory action, the intention of the legislature must be drawn from the language of the pertinent statutes in question. I think it is determined by the requirement of the statute that the property of the spouses be divided by the interlocutory order, which alone is made appealable. The statute makes the final decree confirmatory only. Thus the plenary powers invoked by the action must be exercised by the court in its interlocutory order if it is to be exercised at all. Its powers as to the disposal of property being exhausted in the appealable interlocutory order, no power remains thereafter but that of confirmation. I think the logic of this situation compels the conclusion that the legislature intended the earnings of parties subsequent to the interlocutory order to be their separate property. Otherwise it would not have made it impossible for the court to divide such property.

If this reasoning be sound, the instant case must be affirmed.

California-Western States Life Ins. Co. v. Jarman, ante p. 98, 185 P.2d 494, is the only case in point on this question. It holds that earnings after the entry of an interlocutory order are community property. The opinion in that case does not cite in its support any case involving any such earnings acquired subsequent to the entry of an interlocutory order of divorce. Indeed, there are none such to cite. The bench and bar have universally treated such earnings as separate property. Not to overrule the Jarman case, will put members of the bar in a quandary as to their duty to their clients regarding their earnings subsequent to the interlocutory order. This confusion can be avoided only by overruling theJarman case. We should do so now, before further injustice flows from it.

HILL and BEALS, JJ., concur with MALLERY, C.J.