[No. 36034. Department Two. Supreme Court April 12, 1962.]
EVELYN RUTTER, Respondent, v. DOROTHY GRACE RUTTER,
as Executrix, Appellant.«*»
[1] APPEAL AND ERROR - ASSIGNMENT OF ERRORS - NECESSITY. Where no error is assigned to a trial court's findings of fact, they become the established facts of the case.
[2] SAME - SUFFICIENCY - ERROR IN ORAL DECISION OF TRIAL COURT. Allegations of error directed to statements contained in a trial court's oral decision do not constitute proper assignments of error.
[3] TRIAL - BY COURT - ORAL DECISION - OPERATION AND EFFECT. Statements contained in a trial court's oral decision, when at variance with the findings, cannot be used to impeach the findings or judgment, although, when consistent therewith, the findings and judgment may be read in their light.
[4] EXECUTORS AND ADMINISTRATORS - ALLOWANCE AND PAYMENT OF CLAIMS - ACTIONS ON REJECTED CLAIMS - NATURE. An action on a rejected creditor's claim pursuant to RCW 11.40.060 is a civil action; hence, a wife's action against the estate of her former husband upon the rejection of claims for alimony arrearages and other deficiencies under a divorce decree is not a part of either the probate or divorce proceedings, and is legal as distinguished from equitable.
[5] EQUITY - LACHES - ESTABLISHMENT - BURDEN OF PROOF. The burden of proof is upon the party asserting laches, and laches will not be applied sua sponte.
[6] SAME - GROUNDS - SUFFICIENCY. Mere delay, lapse of time, and acquiescence, standing alone, do not bar a claim short of the statute of limitations.
[7] SAME - BOTH PARTIES AT FAULT - EFFECT. As a general rule, where parties are equally at fault, neither can successfully assert laches against the other.
* Reported in 370 P. (2d) 862.
782 RUTTER v. RUTTER. [59 Wn. (2d)
[8] SAME - SHOWING OF INEQUITY - EVIDENCE - SUFFICIENCY. In an action by a wife against the estate of her former husband for alimony arrearages and other deficiencies under a divorce decree, the trial court properly held that the doctrine of laches was not applicable, where the defendant's evidence showed only that the plaintiff could have earlier enforced her claim but made no attempt to do so until after her husband's death, since the defendant failed to sustain the burden of demonstrating such prejudice, hardship, or injury as would make it inequitable to enforce the plaintiff's claim.
[9] TRIAL - RECEPTION OF EVIDENCE REFUSAL - LACK OF PREJUDICE -EVIDENCE HARMFUL TO PROPOSING PARTY. In an action by a wife against the estate of her former husband for alimony arrearages and other deficiencies under a divorce decree, the defendant was not materially prejudiced by the trial court's refusal to admit into evidence the probate file from the husband's estate for the purpose of showing laches on the part of the plaintiff in not having previously enforced her claim against available assets, since the disclosure of the extent of the decedent's assets, while possibly supporting the defense of laches, might have caused greater harm to the defendant's case by inferring willful neglect on the part of the decedent.
[10] DIVORCE - DECREE - CONSTRUCTION - DIRECTION TO MAINTAIN INSURANCE POLICY. A provision in a divorce decree which directed the husband to maintain and pay the premiums upon a life insurance policy and leave the wife as beneficiary, was properly interpreted by a trial court to entitle the wife, upon the husband's death, to the full face value of the insurance; and where the amount of the insurance had been reduced by policy loans to the husband during his lifetime, the court properly entered judgment for the deficiency against the husband's estate.
[11] APPEAL AND ERROR - REVIEW - MATTERS CONSIDERED. The Supreme Court will not consider an appellant's contention where the issue was not raised in the trial court; no error has been assigned to the pertinent finding of fact; and the appellant's argument is not supported by an assignment of error.
Appeal from a judgment of the Superior Court for Snohomish County, No. 68544, Thomas R. Stiger, J., entered January 13, 1961. Affirmed.
Action to recover unpaid obligations under a divorce decree. Defendant appeals from a judgment in favor of the plaintiff.
Baker, Mardesich & Griffin, Mathew D. Griffin, and Richard B. Johnson, for appellant.
Rummens, Griffin, Short & Cressman, for respondent.
[10] See Ann. 145 A. L. R. 528; Am. Jur., Insurance § 1642.
Apr. 1962] RUTTER v. RUTTER. 783
HAMILTON, J. -
This is an appeal from a judgment granting recovery of alimony arrearages and insurance-policy deficiencies against the estate of respondent's former husband, Charles D. Rutter.
On June 14, 1949, respondent and Charles D. Rutter were divorced. After December 8, 1951, Mr. Rutter paid to respondent the sum of $70 per month, whereas the divorce decree stipulated the monthly sum of $150, commencing on that date. The decree further provided that Mr. Rutter should maintain and pay premiums upon certain life insurance, with respondent as beneficiary.
Mr. Rutter died on June 22, 1959, and respondent timely filed a creditor's claim for the alimony arrearages, between December, 1951, and June, 1959, and for insurance-policy deficiencies, created by policy loans to Mr. Rutter. Appellants rejected the claim, and suit was instituted, culminating in trial before the court, sitting without a jury, and judgment favorable to respondent upon both aspects of her claim.
The trial court, in its findings of fact, in addition to the critical dates, events, and amounts involved, found in substance that (a) decedent had "failed and neglected" to pay the alimony arrearages claimed, and (b) the decree of divorce provided decedent was to "maintain and pay" the premiums upon the life insurance with respondent as the "designated beneficiary and not at any time change said beneficiary."
Appellants assign error as follows:
"1. The Court erred when it sustained Respondent's objection to admission of the probate file. . . .
"2. The Court erred in holding that when there is a sixyear statute of limitations applicable it pre-empts the field as it may pertain to laches.
"3. The Court erred in holding that Respondent as beneficiary under plaintiff's policies of insurance had a contractual right to the full face amount thereof."
[1] As pointed out by respondent, appellants assign no error to the trial court's findings of fact, either as made or refused. Such findings, then, become the established
784 RUTTER v. RUTTER. [59 Wn. (2d)
facts. Fain v. Nelson, 57 Wn. (2d) 217, 356 P. (2d) 302, and cases cited.
[2, 3] Furthermore, assignments of error Nos. 2 and 3 are directed to statements, taken somewhat out of context, contained in the trial court's oral decision. Such do not constitute proper assignments of error. Edward L. Eyre & Co. v. Hirsch, 36 Wn. (2d) 439, 218 P. (2d) 888; Fowles v. Sweeney, 41 Wn. (2d) 182, 248 P. (2d) 400. Neither can such statements, when at variance with the findings, be used to impeach the findings or judgment, although, when consistent therewith, the findings and judgment may be read in their light. Clifford v. State, 20 Wn. (2d) 527, 148 P. (2d) 302; Mertens v. Mertens, 38 Wn. (2d) 55, 227 P. (2d) 724; High v. High, 41 Wn. (2d) 811, 252 P. (2d) 272; Tacoma v. Humble Oil & Refining Co., 57 Wn. (2d) 257, 356 P. (2d) 586.
At best, then, the only issues before this court, with respect to assignments Nos. 2 and 3 (assignment No. 1 depending to some extent upon the determination of assignment No. 2), is whether the findings of fact support the trial court's conclusions of law and judgment.
As to assignment of error No. 2, the specific question would thus appear to be whether, upon the basis of the facts found, the trial court should have concluded, as a matter of law, that the doctrine of laches or estoppel barred alimony arrearages falling within the applicable six-year statute of limitations (RCW 4.16.040). The appellants con cede that the trial court correctly applied the statute of limitations to those arrearages beyond the six-year period.
[4] At the outset, it is to be borne in mind that, under RCW 11.40.060, respondent's action, in this case, upon her decree, is a civil action, not a part of the probate or divorce proceedings. Schluneger v. Seattle-First Nat. Bank, 48 Wn. (2d) 188, 292 P. (2d) 203. It is, therefore, a legal, as distinguished from an equitable, proceeding. Appellants are asserting an equitable defense.
Assuming, without deciding, that the doctrine of laches, or equitable estoppel, may be asserted as a defense to the
Apr. 1962] RUTTER v. RUTTER. 785
particular remedy here being pursued by respondent, the basis for its application would appear to be stated in Luellen v. Aberdeen, 20 Wn. (2d) 594, 602, 148 P. (2d) 849, as follows:
"The doctrine of laches is a creature of equity and is grounded upon the principles of equitable estoppel. It does not bar an action short of the statute of limitations applicable thereto, unless it is made to appear that, by reason of the delay in asserting a claim, the other party has altered his position or has been otherwise injured by the delay. [Citing cases.]"
[5-7] In applying the doctrine, under any circumstances, the following general principles appear apropos:
(a) The burden of proof is upon the party asserting laches. Johnson v. Schultz, 137 Wash. 584, 243 Pac. 644. Laches is not applied sua sponte. Gray v. Reeves, 69 Wash. 374, 125 Pac. 162; State ex rel. Kubel v. Plummer, 130 Wash. 135, 226 Pac. 273.
(b) Mere delay, lapse of time, and acquiescence, standing alone, do not bar a claim short of the statute of limitations. Gray v. Reeves, supra; State ex rel. Kubel v. Plummer, supra; Reiner v. Clarke Cy., 137 Wash. 194, 241 Pac. 973; State ex rel. Hearty v. Mullin, 198 Wash. 99, 87 P. (2d) 280; McKnight v. Basilides, 19 Wn. (2d) 391, 143 P. (2d) 307; Luellen v. Aberdeen, supra; O'Connor v. Tesdale, 34 Wn. (2d) 259, 209 P. (2d) 274; Gooden v. Hunter, 56 Wn. (2d) 617, 355 P. (2d) 20.
(c) Generally speaking, where parties are equally at fault, neither can successfully assert laches against the other. National City Bank v. International Trading Co. of America, 167 Wash. 311, 9 P. (2d) 81; McKnight v. Basilides, supra.
[8] An examination of the record herein fails to reveal that appellants presented, relied upon, or offered to produce any evidence, beyond inferences created by: (a) the lapse of time; (b) respondent's failure to earlier enforce her claim; (c) the death of Mr. Rutter; and (d) Mr. Rutter's accumulation, prior to his death, of an estate subject to execution.
786 RUTTER v. RUTTER. [59 Wn. (2d)
Decedent's death undoubtedly created some evidentiary problems. To hold, however, upon the bare showing here presented, that the trial court erred in its ultimate conclusion of law, and that respondent's claim is barred by laches, or equitable estoppel, short of the applicable statute of limitations, would be tantamount to barring, as a matter of law, every other such claim, upon a similar showing. Such holding would ignore the basis of respondent's claim, appellants' burden of proof, and the trial court's finding of the decedent's neglect. In short, appellants have not sustained their burden of demonstrating such prejudice, hardship, or injury as would make it inequitable to enforce respondent's claim against Mr. Rutter's estate.
We, accordingly, agree with the trial judge's oral opinion, where he states, "the doctrine of laches and estoppel factually are not applicable here."
[9] Appellants' assignment of error No. 1 deals with the trial court's refusal to admit into evidence the probate file. Appellants' avowed purpose in offering such was to illustrate the property accumulated by decedent, and its availability during his lifetime for levy. Technically, such portions of the file, as bore thereupon, would perhaps be relevant and admissible in support of appellants' defense of laches, or equitable estoppel. However, since property accumulated by the decedent might lend itself as readily to the interpretation that decedent willfully ignored his alimony obligations«1», as to the interpretation that respondent neglected her efforts to enforce them, we fail to see how appellants were, upon the record in this case, materially prejudiced by the court's ruling.
By assignment of error No. 3, appellants challenge the trial court's conclusion of law and judgment, granting to respondent recovery of insurance deficiencies.
[10] The trial court found as a fact, as evidenced by the interlocutory decree of divorce, that decedent was required to "`maintain and pay the premiums upon the Mutual Life Insurance Company of New York policy of life insurance
«1» Stewart v. Stewart, 1 Ill. App. (2d) 283, 117 N. E. (2d) 579.
Apr. 1962] RUTTER v. RUTTER. 787
leaving plaintiff [respondent] as the designated beneficiary and not at any time change said beneficiary.'"
Interpreting this provision of the decree, the trial court further found, and concluded, that respondent was entitled to the full face value of the insurance, as opposed to the reduced amount thereof, occasioned by decedent's loans.
Contrary to appellants' assertion in their assignment of error, the trial court, in its oral decision, appears to have premised this conclusion upon the terms of the divorce decree, rather than upon a contractual basis.
While the language of the divorce decree might have been more happily worded, in so far as preserving inviolate the respondent's right to the face value of the insurance, nevertheless, the language would appear sufficiently definite to permit the trial court's conclusion as to its intent. No evidence appears in the record supportive of a different interpretation.
That the trial court's interpretation finds support in reason, as well as precedent, appears from the case of Hart v. Hart, 239 Iowa 142, 148 30 N. W. (2d) 748, wherein the Iowa court, in construing almost identical decretal language, with the same result, said:
". . . The decree is clear that defendant shall pay all premiums on this insurance and maintain it in full force and effect. It is a plain violation of the spirit if not the letter of the decree for defendant to have paid some of these premiums merely by borrowing from the insurer and thereby reducing the value of the insurance. . . ."
It is, therefore, our conclusion upon this aspect of the case that the trial court's finding of fact support its conclusion of law and judgment.
Appellants, by way of argument, under assignment of error No. 3, inject the contention that the divorce decree related to one policy of insurance, whereas, in fact, the evidence and the trial court's conclusions of law and judgment affect two policies of insurance.
[11] Unfortunately, such contention may not now be considered by this court, because: (a) upon the record
788 STATE v. PRICE. [59 Wn. (2d)
before us, this issue was not raised in the trial court, Timm v. Gilliland, 53 Wn. (2d) 432, 334 P. (2d) 539; (b) no error is assigned to the pertinent finding of fact, Fain v. Nelson, supra; and (c) argument unsupported by an assignment of error does not present an issue for review, Boyle v. King Cy., 46 Wn. (2d) 428, 282 P. (2d) 261.
The judgment of the trial court is, accordingly, affirmed in all respects.
FINLEY, C. J., DONWORTH, OTT, and HUNTER, JJ., concur.