74 Wn.2d 253, FERN A. CHASE, Respondent and Cross-appellant, v. WILLIAM F. CHASE, Appellant

[No. 38881. Department One.      Supreme Court      August 1, 1968.]

FERN A. CHASE, Respondent and Cross-appellant, v.
                          WILLIAM F. CHASE, Appellant.«*»

[1] Community Property - Insurance Proceeds - Purchased With Community Funds - Status. The community acquires a right to the proceeds of a group insurance disability policy on the husband paid for with community funds, and this right is not affected by a divorce of the parties prior to the time the insurance payment is made. Doubts as to the status of the proceeds will be resolved in favor of community property.

[2] Same - Insurance Proceeds - Purchased With Community Funds -Nature of Ownership on Divorce. A lump sum settlement on a group insurance policy purchased with community funds, which settlement was made subsequent to a divorce and not referred to or provided for in the property settlement agreement or divorce decree, becomes the property of the divorced parties as tenants in common, notwithstanding that the right to payment did not ripen until after the decree of divorce was entered.

[3] Divorce - Disposition of Property - Undistributed Community Property - Nature of Ownership. Generally, if the court does not dispose of community property in a decree of divorce, rights to such property vest equally in the spouses as tenants in common by operation of law.

[4] Same - Child Support - Social Security Benefits to Children - Offset Against Father's Obligation. Where a divorced father, compelled by court decree to contribute a fixed amount for child support, becomes unable to work, the court can, if the circumstances in its discretion permit, treat the father's social security benefits received by the mother for child support as a contribution by the father toward, and deductible from, the court-ordered support payments; however, the father may not make this offset from his payments on his own initiative without court proceedings and modification of the prior decree.

[5] Same - Child Support - Modification. When warranted, the court may make modification of a child support decree effective either as of the time of filing the petition or as of the date of the decree of modification, or as of a time in between, but it may not modify the decree retroactively.

Cross-appeals from judgments of the Superior Court for King County, No. 604401, Story Birdseye, J., entered January 21, 1966, and Theodore S. Turner, J., entered May 20, 1966, and September 2, 1966. Affirmed.

«*» Reported in 444 P.2d 145.

[5] See Ann. 89 A.L.R.2d 7; 24 Am. Jur. 2d, Divorce and Separation      §675.

 254    CHASE v. CHASE           [74 Wn.2d 253

Actions to modify a divorce decree. Both parties appeal from the modifications granted.

Whitmore, Powers, Manion & Ohnick, for appellant.

Matsen, Clark, Cory & Matsen and Newman H. Clark, for respondent and cross-appellant.

HALE, J. -

Fern and William Chase were married in 1937 and divorced in 1964. After the divorce, the husband became permanently disabled from heart disease and unable to work. The divorce and the husband's subsequent disability raise two main questions: One involves the disposition of a lump sum settlement received by the husband under his group insurance policy, and the other concerns reducing his child support payments to the extent of the child's social security benefits.

In 1933, William Chase joined the Navy; in 1937, he married Fern. They had 3 children. After 23 years in the Navy, Chase retired January 31, 1957, as a chief warrant officer with a retirement pay of $318.23 per month. A few days later he went to work for the Boeing Airplane Company in Seattle, where, as an employee, he signed up for a group life, disability and medical insurance program carried by the employer with the Aetna Life Insurance Company as insurer. Premiums for this insurance protection came from both Boeing Company contributions and deductions from Chase's salary commencing with his employment and continuing to the onset of disability in May, 1964. The policy provided for waiver of premiums during the employee's disability.

When Chase first went to work for Boeing on February 5, 1957, he had stated on a company medical questionnaire that he had "no health problems." His first heart attack occurred December 22, 1958, and he was then given medical leave of absence, but returned to work January 19, 1959. Five years later, he had another heart attack, March 13, 1964, and took another leave of absence from his job but returned to work a few weeks later, April 2, 1964. He and his wife then were and for a long time had been separated.

 Aug. 1968]               CHASE v. CHASE           255

Shortly after this last return to work, Chase, in contemplation of divorce, signed a property settlement agreement April 27, 1964. An uncontested divorce hearing April 30, 1964, led to a decree of divorce entered May 7, 1964, which confirmed and adopted the property settlement agreement. After the uncontested hearing, but prior to the entry of the decree, Chase became ill while at work from recurring heart trouble and his doctor sent him immediately to the Public Health Hospital. During this hospitalization, which lasted until May 20, the doctor told him he should never return to work. Thus, although Chase was in the hospital May 7, 1964, when the uncontested divorce decree was actually entered, neither he nor his wife were then aware that he was totally and permanently disabled or entitled to a lump sum settlement for permanent disability from his Boeing group policy.

The divorce decree of May 7, 1964, gave plaintiff custody of their minor son, required the defendant to pay her $100 per month for his support and maintenance, and allowed the defendant liberal visitation. The property settlement agreement contained a provision that the support payments for the child "are based upon the present capacity of the defendant to maintain his job at Boeings and that if he should lose said job for reasons of health, the said support payments will have to be adjusted." In summary, at the time of the uncontested divorce hearing and subsequent decree, defendant was regularly employed at Boeing, drawing his Navy retirement, and paying into his group insurance through a payroll deduction. Being regularly employed at the time, he was, of course, not then entitled to social security payments either for himself or his child or to any benefits under the Boeing group insurance plan.

Between May 20, 1964, when he was released from the hospital with a prognosis of total disability, and the following October, defendant did not work. In October, he applied for disability benefits under his Boeing group policy and shortly thereafter for social security disability benefits which he subsequently received. Later, in the spring of 1965, defendant was offered and acceptred or entered the same with intent to commit a crime therein, unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without criminal intent. The first matter to be considered is the state's contention that by failing to stand on his motion to dismiss made and denied when the state rested its case at the trial and by thereafter testifying in his own behalf, appellant waived his motion to dismiss.

The state in support of its position cites the recent case of State v. Mudge, 69 Wn.2d 861, 862, 420 P.2d 863 (1966) in which this court stated the applicable rule' as follows: At the conclusion of the state's case, the defendant took the stand and testified in his own behalf. This court has held that a motion to dismiss at the end of the state's case is waived when the defendant offers evidence in his own behalf. In his reply brief appellant argues that he did not waive his motion to dismiss by testifying in his own defense. In support of his position he relies upon State v. Brown, 178 Wash. 588, 35 P.2d 99 (1934) in which this court recognized the existence of the rule but held that it did not

«1» Other recent decisions bearing on this problem are Seattle v. Ruffin ante p. 16, 442 P.2d 619 (1968); State v. Nelson, 63 Wn.2d 188, 386 P.2d 142 (1963); State v. Brubaker, 62 Wn.2d 964, 385 P.2d 318 (1963); State v. Goldstein, 58 Wn.2d 155, 361 P.2d 639 (1961); State v. Thomas, 52 Wn.2d 255, 324 P.2d 821 (1958); State v. Bates, 52 Wn.2d 207, 324 P.2d 810 (1958); State v. Emerson, 43 Wn.2d 5, 259 P.2d 406 (1953); State v. Emmanuel, 42 Wn.2d 799, 259 P.2d 845 (1953); State v. Dildine, 41 Wn.2d 614, 250 P.2d 951 (1952). See also P. Trautman, Motions Testing The Sufficiency Of Evidence, 42 Wash. L. Rev. 787, 795 (1967), which indicates that State v. Mudge, 69 Wn.2d 861, 862, 420 P.2d 863 (1966) correctly states the present rule.

 July 1968]          STATE v. WILSON                247

apply where the evidence produced by the defendant had no bearing on the merits of the case.«2»

Appellant contends that his own testimony had no bearing on the merits of the case, and, therefore, the rule referred to in the above-cited case is not applicable to this case. We do not agree.

He testified that he had been drinking at various taverns and bars since about 6 or 7 am. on January 23. Late that night he telephoned his ex-wife and asked her to come and get him. She said: "No, take the bus." Appellant then testified on direct examination: So, I left the phone booth and I was waiting for the bus, leaning up against the Harmony Apparel Shop, and I stood there for a while and the bus never comes at that time of night. I don't know why. I waited and waited.

Eventually I saw a police car pull up. I figured somebody called the police and they will pinch me for being drunk.

The door at that time was open and I slipped inside and sat down and waited. I heard some people making noise. I didn't go back there. I didn't want to get pinched.

I set there and I don't know if I fell asleep, but eventually I woke up and there is a policeman with a gun. I walk down there and I said, "I give up. Don't be shooting me."

He put my hands up and shook me down and brought us down to the police station. That's the extent of it, I guess.

Q. Did you go inside of the Harmony Store there with the intent to commit any crime therein?

A. Just to get away from the police. On cross-examination appellant stated that after the telephone call to his ex-wife he was waiting for the bus. He wasn't certain which bus (the police officers testified that they arrived at the location about 11:30 pm.). He went into the front of the apparel shop. He heard noises that sounded like a banging in the rear of the store but he did not want to go back and cause any trouble. He was positive that he

«2» See also State v. Emerson, 43 Wn.2d 5, 259 P.2d 406 (1953) dissenting opinion.

 248    STATE v. WILSON          [74 Wn.2d 253

did not go to the back of the store. He then testified as follows: Q. Did this cause you to be suspicious at all?

A. No. In my condition I couldn't have been suspicious at all of anything.

Q. You were quite inebriated?

A. Yes. I have been drunk for seven years. I can't see how in the world they can say I am sober that night. I can't sober up for one night. Appellant was never asked about the little red Scotch plaid bag which was admitted in evidence as exhibit 5 (and a photograph thereof as exhibit 6). The police officers testifled that this bag was found against the wall in the lavatory area in the apparel shop. It contained a flashlight (which was turned on), gauze bandages, an inch-wide pry bar, tape, a hatchet, sneakers, vice grips, some keys and a can of Right Guard. These two exhibits were available to the jury in their deliberations. They were also available to the trial court in drawing proper inferences (unfavorable to the moving party) in passing on the motion to dismiss made by appellant when the state first rested.

[1] We have referred to the evidence in some detail because appellant's sole claim of error (to wit, that the trial court erred in denying his motion to dismiss made at the close of the state's case and not renewed thereafter) is based on an exception to the general rule that such a motion was waived by his subsequent introduction of evidence. This exception is recognized where the evidence introduced has no bearing on the merits of the cause.

It is quite apparent that appellant's testimony in this case did have a bearing on the merits of the cause in several material respects. Therefore, the exception to the general rule of waiver does not apply to this case. The general rule of waiver which has been applied in 10 of our decisions cited (supra) is applicable here and thus we are precluded

 July 1968]          STATE v. WILSON                249

from passing«3» upon appellant's assignment of error because it has been waived.

The judgment and sentence is hereby affirmed.

FINLEY, C. J., HILL, HAMILTON, and NEILL, JJ., concur.

November 15, 1968. Petition for rehearing denied.

«3» Even if we were able to pass upon the assignment of error the result would be the same. The state had made a prima facie case of breaking and entering, and this, when coupled with the statutory presumption supplied by RCW 9.19.030 was sufficient to warrant the denial of appellant's challenge to the sufficiency of the evidence.