Shattuck v. Shattuck , 141 Wash. 600 ( 1927 )

In August, 1918, the respondent and the appellant were divorced. The latter was given the care and custody of the only children, two boys, who were then, respectively, seven and eight years of age. The decree required the respondent to pay alimony to the appellant for the care and custody of the children, and for her own use, in the sum of fifty dollars a month. The respondent has paid this alimony monthly until, in April, 1926, he petitioned the court to be relieved of paying it. Prior to the present petition and during the year 1924, he had made a like petition to the court, which, after a hearing, was denied.

In September, 1919, the respondent was remarried and now has four children by the second marriage. At the time of the hearing which we are reviewing, the respondent was about forty-four years of age, and the appellant somewhat younger. At that time the two boys, who were the issue of the marriage between the parties to this proceeding, were sixteen and seventeen years of age, respectively, and the four children by the second marriage were aged, respectively, six years, four years, two years, and six months.

The court granted the respondent's petition for a modification of the amount of alimony to the extent of reducing it from fifty dollars to twenty dollars per month. The former wife, being dissatisfied, has appealed.

[1] During recent years, the appellant and her two boys have been living in Seattle, and the respondent and his present family have been living on a farm near the town of Shine, in this state. When the original divorce was obtained and when the hearing for a modification of the alimony was heard in 1924, the respondent was earning a salary on the farm which he was running of one hundred twenty-five dollars a month. During the year preceding the last hearing, his income had become less. Instead of receiving a salary, he was given the use of a two-hundred-acre farm, of which there were some twenty or thirty acres of tillable land, in consideration of looking after and caring for some live stock on the farm belonging to the Puget Mill Company, the owner of the farm. The trial court found that, during the year immediately preceding the hearing, the respondent had made $1,007 net. We have read all the testimony, although it is not greatly in dispute. It is quite plain to us that, at least in the immediate future, the respondent's net income will not be materially greater than during the last year. In other words, it now looks as though the respondent's net income for some time in the future would be in the neigborhood of eighty-five dollars a month. Of course, he and his present family get much of their living from the farm, and their expenses are not so great as they would otherwise be. But there are four small children who are not capable of helping themselves. On the other hand, the appellant is capable of earning something, and her two boys are also capable of doing more or less work and earning something, notwithstanding they are not very strong. Under these circumstances, we cannot say that the trial court abused his discretion in cutting down the alimony from fifty dollars to twenty dollars a month. It was the duty of the court to make a fair division of respondent's income between the two families, and we think he has done this.

Appellant quite strenuously argues that the respondent had no right to remarry and thus attempt to avoid his duty to his first family. It may be that he ought not to have remarried, but he did, and has brought into the world four additional children. He has as much duty to, and the court has as much interest in, those children as those of the first marriage. It is not so much a question as to what his needs are as to what are the needs of all of his children. Since the hearing in 1924, the circumstances have materially changed. Another child has been added to respondent's family, his two older boys have reached an age when they can, at least to some extent, help themselves, and his income is less. His younger children have greater need of his aid than his older ones. The income should be divided, not necessarily equally among the children, but according to their respective needs.

Under all the circumstances, we feel convinced that the trial court has made a fair division of the prospective immediate future income of the respondent, and for that reason the judgment is affirmed.

TOLMAN, C.J., PARKER, HOLCOMB, and MACKINTOSH, JJ., concur.