Stafford v. Stafford , 10 Wash. 2d 649 ( 1941 )

A woman, who marries a divorced man who is required by the divorce decree to pay a stipulated amount at stated intervals for the support of his divorced wife and the child or children of himself and that divorced wife, takes that divorced man with the understanding that the prior claim must be satisfied from the community property of herself and that divorced man, if he can not satisfy that obligation from his separate property.

I am mindful of expressions of this court that a marital community is an entity, and that a separate judgment against a husband or wife does not become a lien against community property. By the community property law of this state, Rem. Rev. Stat., § 6890 [P.C. § 1432] et seq., the legislature did not create an entity or a juristic person separate and apart from the spouses composing the marital community. All that the legislature did was to classify as community property — designate the character of certain property as community and other property as separate — the property acquired after marriage by the spouses. We have, for convenience of expression, employed the terms "entity" and "legal entity," in referring to a partnership and to a marital community. We have never held, however, that a partnership or a marital community is a legal person separate and apart from the members composing the partnership or community, or that either the partnership or the marital community has the status of a corporation.

A marital community is not a corporation nor is it a partnership, although the community of property between the spouses is, in a restricted sense, a partnership between the husband and wife. The legislature did not change, in defining community property (Rem. Rev. Stat., § 6890 et seq.), the relationship of husband and wife to the status of a corporation, or declare that the property acquired during marriage was owned by a legal personality, distinct from the spouses composing the community.

I agree that, in the community property, each of the spouses has an undivided one-half interest, but I repeat that a woman, who marries a divorced man who is required by a divorce decree to make certain payments for the support of his divorced wife and child, takes the divorced man with the burden of satisfying, if the man has not available separate property for that purpose, from the community property of herself and that divorced man the prior claim of the divorced wife. The divorced man and the second wife may not, by the investing of cash or other personal property in real property, escape, any more than if they went through bankruptcy, the burden which they accept when they marry each other. A holding that a woman and a divorced man, who marry each other, may transmute their subsequently acquired personal property into real property and thereby evade payment by that husband of an amount stipulated by a divorce decree for the support of the divorced wife and children, would be contrary to a sound public policy, and would permit a father to escape a responsibility which is founded upon the very laws of nature.

The remedy of contempt proceedings to coerce the father to support his child would not always be effective. Concealment of the community personal property acquired by him and his second wife, or changing its character to that of real property, thereby rendering himself unable to support his child or children because of lack of separate property or community personalty (concededly, the husband's separate real and personal property and the community personal property may be taken to satisfy the judgment for alimony and support of the children), would defeat the children's claim. The father's hungry and unclad children would not be fed or clothed by the contempt proceeding. The second wife could retain the community real property, and permit her husband to remain confined because of his contumacy, while she lived on the proceeds from that real property. No such situation should be countenanced.

The judgment should be affirmed.