Cooper v. Cooper

Finley, J.

(concurring in the result) — Aware of the rule of Walkow v. Walkow, 36 Wn. (2d) 510, 219 P. (2d) 108, that a superior court cannot modify its custody, and inferentially its visitation provisions, in a divorce decree while an appeal is pending, confronted with a decree as to visitation privileges containing language that might be interpreted or applied by the superior court with some flexibility without any change or modification of the language itself, but in the position of having to act at his peril in restricting visitation privileges unless subsequently the superior, court should agree with him that changed circumstances justified the restriction, the respondent brought his problem here on a motion for the supreme court, (1) to modify the decree, or (2) to direct the superior court to hear and ascertain the facts, and then determine whether modification was indicated in the best interests of the child concerned in the matter.

It appeared to me that the most clear cut and precise solution was to refer the problem back to the superior court with authority to modify the decree if that was deemed necessary after hearing and ascertaining the facts.

Such procedure would have resolved doubts antecedently and relieved respondent of any burden of having to act at his peril. He, thereby, could know exactly where he stood, what he could and could not do. The same result appears to be capable of accomplishment under the majority opinion through authorized interpretation or flexible application of the existing decree or its language by the superior court. The possibility or necessity for changing the language of the decree itself is avoided altogether. This assumes, of course, that respondent, upon application and a proper showing to the superior court, can be protected by an order or other tangible court action relieving him of the duty of exact compliance with the existing decree. In other words, that, while the appeal is pending, he shall not have to act,at his peril subject to subsequent court approval or disapproval.

On the basis of the foregoing assumptions respecting the majority opinion, I concur in the result.