Togliatti v. Robertson , 29 Wash. 2d 844 ( 1948 )

I am unable to agree with my fellow judges who have signed the majority and concurring opinions. Much could be written to prove that the two opinions are contrary to the whole theory of community property. However, it would serve no useful purpose to write such a dissent. I will content myself with giving in a few words my reasons for disagreement.

The community property system was unknown to the common law and is, in this state, purely a creature of statute, so we must go to the statutes as passed by the legislature in order to ascertain the meaning of laws relating to community property.

It must be admitted that if the money earned by John Morello was community property, he could not use it for the purpose of purchasing property for another individual. This rule has definitely been decided by this court in Occidental Life Ins.Co. v. Powers, 192 Wash. 475, 74 P.2d 27, 114 A.L.R. 531;Hanley v. Most, 9 Wash. 2d 429, 115 P.2d 933; and King v.Prudential Ins. Co., 13 Wash. 2d 414, 125 P.2d 282. The status of real or personal property, whether separate or community, is to be determined as of the date of its acquisition.State ex rel. Van Moss v. Sailors, 180 Wash. 269,39 P.2d 397.

Rem. Rev. Stat., §§ 6890, 6891, and 6892, define community property as being property acquired after marriage by either husband or wife, or both, except property acquired by gift, bequest, devise, or descent. The one exception to this rule is contained in Rem. Rev. Stat., § 6896 [P.P.C. § 434-35], which says that:

"The earnings and accumulations of the wife and of her minor children living with her, or in her custody while she is living separate from her husband, are the separate property of the wife."

The interlocutory order of divorce granted in this case has no force or effect whatever in determining the character or status of the property indicated by the bonds in controversy here. The section of the code which provides for the granting of interlocutory orders provides in part:

"In no case shall such interlocutory order be considered or construed to have the effect of dissolving the marriage of the parties to the action, or of granting a divorce until final judgment is entered." Rem. Rev. Stat. (Sup.), § 988.

An interlocutory order becomes a nullity in its entirety in those cases where one of the parties to the action dies prior to the entry of a final decree. In re Madden's Estate, 176 Wash. 51,28 P.2d 280; McPherson v. McPherson, 200 Wash. 365,93 P.2d 428; State ex rel. Atkins v. Superior Court, 1 Wash. 2d 677, 97 P.2d 139; and In re Garrity's Estate, 22 Wash. 2d 391, 156 P.2d 217.

The statutes are clear and give the evident purpose of the legislature in enacting them. There is no room for construction of these statutes defining community property. They speak for themselves in no uncertain language. The opinions in this case simply add provisions to the acts of the legislature by saying that property acquired by the husband and wife after marriage is community property, unless they cease to live together as husband and wife for a considerable period of time. That is judicial legislation.

A question comes to my mind as to how this opinion shall be applied to other facts which have to do with people who are husband and wife who are not living together. How long must they live separate and apart before the property acquired by the husband ceases to be community property? Will it be one year? Two years? Five years? Ten years? Or a longer period of time? Or does the court intend to hold that any separation of husband and wife for any time shall bring about the result obtained by the majority opinion in this case?

To my mind, the case presents no intricate questions. All the court should do is to follow the simple injunction of the statute, which is to the effect that all property acquired byhusband or wife, or both, after marriage, is community property.

March 31, 1948. Petition for rehearing denied.