66 Wn.2d 928, LILYON B. TONKOFF, Respondent, v. J. P. TONKOFF, Appellant

[No. 38030. Department Two.      Supreme Court      September 16, 1965.]

LILYON B. TONKOFF, Respondent, v. J. P. TONKOFF, Appellant.*

Appeal from a judgment of the Superior Court for Yakima County, No. 22093, Joseph H. Johnston, J., entered October 22, 1964. Affirmed.

Action for divorce. Defendant appeals from a judgment in favor of the plaintiff.

J. P. Tonkoff, pro se.

Alan A. McDonald (of Halvorson, Applegate, McDonald & Weeks) and George Clark, for respondent.

PER CURIAM. -

The parties were divorced by a decree entered on March 30, 1963, by the Honorable James Mifflin, who sat as a visiting judge in Yakima County. The decree awarded a divorce to both parties. It provided that the plaintiff was to receive the cash sum of $10,000. The rest of the property was awarded to the defendant, who had claimed that it was his separate property and had valued it at approximately $500,000. He was required to pay alimony of $500 per month for a period of 5 years or until the earlier death or remarriage of the plaintiff and the sum of $250 per month for the support of his minor son, an atypical child, whose custody was awarded to the plaintiff.

The decree of divorce and the findings of fact made no reference to the income tax liability of the parties, which the defendant had stated during the trial was pending in the approximate sum of $25,000. After the time for filing a motion for a new trial had passed, the plaintiff was threatened with an attempt to collect this obligation from her. She appealed to this court from the divorce decree, and the defendant cross-appealed.

Thereafter, on motion of the plaintiff, this court granted her leave to apply to the Yakima County Superior Court for a hearing for the limited purpose of determining whether the trial court and the plaintiff's counsel had been justifiably misled by the defendant and had consequently omitted any reference to the income tax liability in the findings and decree. Such a hearing was held before the Honorable Joseph H. Johnston, superior court judge, who determined from all the evidence and from the language of the divorce decree ("with respect to support and alimony and other payments herein provided, that same shall be made to the Clerk of the above-entitled Court for transmittal to the plaintiff, without any reduction in the amount thereof for any purpose unless such reduction shall first have been approved by the order of the Court") that the court and counsel had been led by the defendant to believe that he considered the income tax liability his obligation and would pay it, and that this explained the omission of any reference to the matter in the findings and decree. An order modifying the decree was entered. It provided for payment of the obligation by the defendant.

* Reported in 405 P.2d 728.