49 Wn.2d 387, MERLE E. SCOTT, Appellant, v. GUY L. HOLCOMB, Respondent
[No. 33351. En Banc. Supreme Court October 4, 1956.]
MERLE E. SCOTT, Appellant, v. GUY L. HOLCOMB,
Respondent.«1»

"Bal. Code, § 4508 (P. C. § 3874), provides that `The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.' This obligation is the same after divorce as before, unless the decree of separation provides otherwise. It follows from this that the obligation of the father and mother in this state in relation to the maintenance and support of their minor children is joint and several, and not primary and secondary as at common law. And when the mother supports and maintains the children she is but performing an obligation which the law imposes jointly

Oct. 1956] SCOTT v. HOLCOMB. 391

upon her and the father, and we know of no principle of law that would permit her to recover the entire expense of such maintenance and support from her joint obligor.

"In actions of this kind, prosecuted after divorce and adjustment of property rights, the court does not possess that wide discretion which it may exercise in the divorce action. In adjusting the property rights of the parties to the divorce, the court may impose the entire obligation to support and maintain the minor children on either the father or the mother, but in a subsequent proceeding it can only enforce the obligations imposed by law. If the parties are both able to contribute to the support and maintenance of their children they must do so in equal parts. If both parties are not able, the party who has the ability must bear the entire burden as between the parents and the public. In considering the amount that should properly be allowed in such cases, the court should therefore consider the ability of the parents, the care and attention the mother must give the children, the assistance the mother will receive from the children, if any, and all the surrounding facts and circumstances, and equalize the burden between them as nearly as may be."

The principles laid down in these cases were applied again in Schoennauer v. Schoennauer, 77 Wash. 132, 137 Pac. 325 (1913), wherein the husband, alleging that he had been abandoned by his wife, obtained a decree of divorce in another state. The decree did not mention the minor child of the parties. The husband contended that the decree was an adjudication of the fact that his former wife abandoned him and was at fault; that she wrongfully retained custody of the child and was entitled to no recovery. In answer to this, we said:

"This contention is without merit and cannot be sustained. Whether it be assumed that appellant abandoned his wife, or that she abandoned him, the rights of their child would not be affected, nor would the appellant be relieved of the duties or obligations imposed upon him to contribute to its support."

That the duty of support rests upon both parents was again recognized in State ex rel. Ranken v. Superior Court, 6 Wn. (2d) 90, 106 P. (2d) 1082 (1940) and Sanges v. Sanges,

392 SCOTT v. HOLCOMB. [49 Wn. (2d)

44 Wn. (2d) 35, 265 P. (2d) 278 (1953). We know of no case in our reports enunciating a contrary doctrine.

While none of these cases involves a suit by a father to obtain contribution, there is no distinction made between the right of the father and the right of the mother. On the other hand, it is recognized in each case that the parental responsibilities are equal.

While we might conceive of a situation in which a parent would be estopped to claim contribution, there is nothing in the record before us to justify the application of the doctrine of estoppel. The appellant did not contend or argue, either in the trial court or in this court, that she was wrongfully deprived of the custody of the children; nor is there anything in her deposition to indicate that she regretted not having the society of her children. The record reveals no clue as to why the parties separated. The appellant alleged in her complaint that she had been abandoned by the respondent; the respondent denied this and alleged that he had been abandoned by the appellant, which she in turn denied. No proof was offered in support of either allegation. In the absence of any adjudication on the question, we cannot speculate upon the reason why the parties separated. Under the holding in Schoennauer v. Schoennauer, supra, the fact of abandonment is immaterial; however, it is not necessary to adopt the extreme doctrine of that case in order to uphold the respondent's right to contribution since no abandonment was shown.

[1] To hold that a father who has maintained and supported his children is not entitled to recover contribution from their mother would produce an anomalous situation in the law. Under our statutes, as interpreted in the cited cases, a mother would be required to contribute financially to the support of her children if she had them in her custody and, consequently, had the added responsibility of their care and supervision, but would be relieved of all duties if the father had custody of them. On the other hand, the father would be liable for only half of the children's support when they were in the custody of their mother, but

Oct. 1956] SCOTT v. HOLCOMB. 393

would be responsible for their entire support, as well as their care and supervision, when they were in hips custody. Such an inequitable result could not reasonably have been intended by the legislature; and there is nothing in the language of the statute which compels us to conclude, or which even suggests, that this was the legislative intent. Moreover, under RCW (Sup. 1955) 26.20.030, either parent may be punished in a criminal action for desertion of, or for failure to support, his or her dependent children. Consequently, we hold that, where there is no provision in the divorce decree for support, the rights and responsibilities of the parents being equal, a father may recover contribution for the support of his minor children when he has had them in his custody while living separate and apart from their mother.

[2] The appellant next argues that the respondent's counterclaim should have been interposed in the New York suit, and that the judgment obtained in that action is res judicata as to the claim. To determine whether the counterclaim could have been asserted in the New York action, we must look to the law of that state. Neither the statutes nor the common law of New York was pleaded, therefore we presume that the law of New York is the same as the law of Washington. Norm Advertising v. Monroe Street Lbr. Co., 25 Wn. (2d) 391, 171 P. (2d) 177 (1946).

[3] The appellant concedes that this is a proper counterclaim under RCW 4.32.090, .100 (Rem. Rev. Stat., §§ 273, 265). It is settled in this state that it is not necessary to interpose a counterclaim unless the proof which would establish that claim would defeat the plaintiff's cause of action. If the counterclaim is an independent cause of action, even though it is connected with the subject of the action and may properly be asserted, the defendant may elect not to plead it; and the judgment rendered in the cause will not bar a subsequent independent action based on the claim nor deprive the defendant of the right to rely thereon as a defense to, or as a counterclaim in, a subsequent action. The doctrine was first enunciated in this state in Deaver v.

394 SCOTT v. HOLCOMB. [49 Wn. (2d)

Trahey, 98 Wash. 63, 167 Pac. 68 (1917), and was most recently stated in Maxwell v. Provident Mut. Life Ins. Co., 180 Wash. 560, 41 P. (2d) 147 (1935). Both of these cases quoted with approval the following excerpt from 15 R. C. L. 972:

"The distinction between defenses which are lost if not set up by a defendant and those which need not be invoked by him depends on the closeness of the relationship between the plaintiff's cause of action and the defense. A fact which is impliedly or expressly involved in a judgment is considered merged therein so that it cannot be again litigated, but a separate cause of action will not necessarily be merged, and therefore need not be pleaded as a defense. While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact are not joined or embraced in the pleadings. It is generally held that a set-off may or may not be pleaded, at the election of the defendant; and if not pleaded, the right to sue upon it as an independent cause of action, or to rely upon it in defense to another action by the same plaintiff, is not affected or impaired by a judgment against the defendant."

[4] The appellant sued in the courts of New York for reimbursement for the expenditures she had made in behalf of the minor child who had been in her custody; no mention was made in the complaint of the other four children of the parties. Her right to recover for these expenditures was wholly independent of the respondent's right to recover contribution for the support of the children he had reared. The proof of either claim would not defeat the other but would serve merely as an offset. This being the case, the right to assert it was not foreclosed by the New York judgment.

Under the view we have taken, it becomes unnecessary to decide whether, as the appellant contends, the trial court erred in finding that the New York judgment was fraudulently procured. Since no affirmative judgment was given in behalf of the respondent, and he has not appealed, it is immaterial to him whether the New York judgment is declared void, by reason of fraud, or is offset by his

Oct. 1956] SCOTT v. HOLCOMB. 395

counterclaim. Either result will support the court's judgment of dismissal, and the respondent apparently is satisfied with the relief obtained.

The judgment is affirmed.

DONWORTH, C. J., MALLERY, SCHWELLENBACH, FINLEY, WEAVER, and OTT JJ., concur.

HILL, J. (dissenting) - Whatever may be the Washington law as to a father's right of contribution against the mother for support and maintenance he has furnished to their children, it has never before been applied to such a state of facts as that presently before us. Here, a father who left his wife in New York, taking four of the five minor children with him to Michigan and later bringing one of them to Washington, and concealing his and their whereabouts from her during the entire period that he furnished maintenance and support for them, is held to have a right to contribution from her for half of that maintenance and support. There is no other case anywhere so holding.

The majority is concerned about its inability to determine who abandoned whom in the state of New York. There is, however, no doubt as to who left the community where the family resided. There is no doubt as to who spirited away four of the children from that community. There is no doubt as to who concealed his own and the children's whereabouts during all of the years that he supported and maintained them. And those undisputed facts are sufficient, in my opinion, to provide the answer to the question of the father's right to contribution for the support of those children. (I place no emphasis upon the fact that the husband left New York with the woman who was or who thereupon became his paramour, except as it bears upon the issue of abandonment.)

The rule should be, and I believe is, that, as between a father and a mother, either parent's obligation to contribute to the support and maintenance furnished by the other to their child or children is suspended during such time as the parent from whom contribution is sought is wrongfully deprived of the custody of the child or children in question, or