30 Wn.2d 914, JOHN L. ERICKSON, Appellant, v. MILDRED G. ERICKSON, Respondent
[No. 30501. Department One. Supreme Court June 10, 1948.]
JOHN L. ERICKSON, Appellant, v. MILDRED G. ERICKSON,
Respondent.«1»

[1] DIVORCE - SUPPORT OF CHILDREN - DISPOSITION OF PROPERTY GIVEN AS SECURITY FOR SUPPORT. In a proceeding by a divorced husband to receive one half of shares of stock held by his former wife, under the terms of the divorce decree, as security for the payments of support money until the younger child of the parties reached the age of twenty-one years, at which time the shares were to be equally divided between the parties, held that the husband was not entitled to receive his half of the stock until he paid $750 to his former wife as contribution to the younger child's support after she quit work and entered the university, even though the decree had been modified by an order terminating the support money for such child when she began working with the provision that it might be restored in case she returned to school, and no further order for the restoration of the support money payments was requested or obtained.

[2] SAME - NATURE AND FORM OF REMEDY - EQUITABLE PROCEEDING. A divorce action from its inception is an equitable proceeding.

[3] EQUITY - MAXIMS - HE WHO SEEKS EQUITY MUST DO EQUITY. Under the maxim that he who seeks equity must do equity, a court of equity will condition its grant of relief to a plaintiff with the enforcement of any just claim of the defendant which the plaintiff, in good conscience, should pay, although the defendant might not be able affirmatively to enforce it.

[4] COSTS - ON APPEAL - PARTIALLY SUCCESSFUL APPEAL. Where, although the judgment of the trial court was not affirmed, the appellant did not secure such relief as to entitle him to any costs, neither the appellant nor the respondent will recover costs on the appeal.

Appeal from a judgment of the superior court for King county, Lawler, J., entered November 21, 1947, upon finding in favor of the defendant, in an action for an accounting, tried to the court. Remanded.

C. A. Schneider, for appellant.

Wettrick, Flood & O'Brien, for respondent.

HILL, J. -

On June 29, 1939, Mildred G. Erickson was awarded an interlocutory decree of divorce from John L. Erickson, on her cross-complaint, and a final decree was

«1» Reported in 194 P. (2d) 954.

[1] See 165 A. L. R. 1243; 17 Am. Jur. 533.

June 1948] ERICKSON v. ERICKSON. 915

subsequently entered. By the interlocutory decree, she was awarded the custody of their two children, a boy and a girl, and sixty dollars a month for their support until the boy, the older of the two, became twenty-one years of age, and thirty-five dollars a month thereafter until the girl be came twenty-one. Fifty shares of Superior Portland Cement Association Class A stock were directed to be and were delivered to Mrs. Erickson, to be held by her as security for the support-money payments. The income from the stock was to be used to pay medical and dental expenses for the children; and, when the girl became twenty-one years of age, the stock was to be divided equally between Mr. and Mrs. Erickson.

Before May 13, 1943, the boy had become of age and the support money for the girl had been reduced to thirty dollars a month. On that date, the interlocutory decree was again modified because the girl, who was then eighteen years of age, had graduated from high school and was earning one hundred twenty-five dollars a month. The pertinent part of the modification decree was as follows:

"NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED and DECREED that the Interlocutory Order and Final Decree and all orders heretofore made and entered with reference to the monthly allowance for the support of said child, which is now $30.00 per month, be and is hereby terminated as and of the 1st day of May, 1943, and that the plaintiff John L. Erickson is relieved and released from making any further payments for the support of said child whatsoever from the 1st day of May, 1943, until further orders from the Court, and in case the said child returns to school, or is not selfsupporting, then the defendant upon three days notice to the plaintiff or his attorney may restore the provision for the support of said child in such sum as the Court may then determine for her support while in attendance at school, or is not self-supporting.

The girl quit work and entered the University of Washington that fall and attended the university, with the exception of summer vacation periods, until she became twenty-one years of age on March 20, 1946. Other than twenty dollars sent directly to the girl, apparently as a gift,

916 ERICKSON v. ERICKSON. [30 Wn. (2d)

Mr. Erickson made no contribution to her support during the period she was attending the university.

On June 21, 1946, Mr. Erickson made a motion

". . . for an Order directing the defendant [respondent] to forthwith deliver to him on behalf of the plaintiff Cement Association and to make full accounting for the dividends received, and pay one-half thereof to the plaintiff or be adjudged guilty of contempt of court."

Promptly thereafter, on June 25, 1946, Mrs. Erickson filed a report showing dividends in the amount of $411.25 received from the stock, and medical expenses amounting to $266.92, which left a balance of $144.33. She alleged that necessary expenditures for the education of the girl had amounted to $1,848.80 and asked $1,020 by way of contribution to her support, less the sum of $144.30, or $875.70.