Lynn v. Lynn

Citations: 480 P.2d 789; 4 Wash. App. 171; 1971 Wash. App. LEXIS 1308Docket: 347-2

Court: Court of Appeals of Washington; February 1, 1971; Washington; State Appellate Court

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James Edward Lynn appeals a divorce decree favoring Helen Mae Lynn, which awarded her custody of the children, most community assets, and part of his separate property. The appeal is complicated by James's dissatisfaction with his trial counsel, leading him to seek a substitution of attorneys both before and after the final judgment. The key issues on appeal include: 

1. Whether the trial court denied James effective representation by refusing to recognize the substitute attorney during motions for reconsideration and a new trial, alongside claims that the court abused its discretion in denying these motions.
2. Whether the trial court abused its discretion regarding the property settlement and attorney fees.

During the proceedings, James appeared with a substitute attorney who alleged that the original attorney had agreed to represent him for a fee between $100 and $150. The original attorney later contested this, stating a minimum charge of $250. The trial court ultimately denied the motions for reconsideration and a new trial, emphasizing the importance of consistency in courtroom testimony over post-trial affidavits. The court also noted that the original attorney's fees were unpaid and consequently did not recognize the substitute attorney.

RCW 2.44.040 allows for the substitution of attorneys only before a final judgment is entered, contingent upon the payment of the current attorney's fees. After judgment, this payment condition does not apply. The trial court should have considered evidence regarding attorney fees during the hearing on the defendant's motion for a new trial, but instead, it dismissed the attorney fee claims as implausible without evidence. The court denied the substitution of attorneys, noting no prejudice to the husband, as it recognized the attorney of record and addressed the motion on its merits. The trial court did not permit changes to testimony post-judgment and ultimately denied the motions to vacate the judgment and for a new trial after reviewing relevant affidavits and motions. The defendant's claims of negligence against the trial attorney were dismissed, as differences in trial tactics do not equate to incompetence. A fair trial was determined to have been afforded to the defendant, and the failure to fully recognize the substitute attorney was deemed a harmless error. The discretion to grant a new trial rests with the trial court.

No abuse of discretion was found in the denial of a new trial. The defendant claimed that the trial court mismanaged the property settlement and attorney fees. The couple, married since August 6, 1959, has four children living with the plaintiff wife in the family home, which was originally the husband's separate property. The wife, a waitress with an eighth-grade education, has hired help to care for the children while she works. The husband receives a monthly army retirement pension of $246 and previously earned $440 monthly as a cottage parent until he left that job due to stress from the divorce. At trial, he was engaged in odd jobs.

The couple accumulated minimal community property, mainly improvements to the husband's separate property, a 90-acre waterfront tract inherited shortly before their marriage, valued at approximately $500,000 with a mortgage of $7,800. The court awarded the wife the family home and an additional 4 or 5 acres of the husband's separate property, along with most community property like household items and a car. The husband retained the remaining 90 acres, two cars, and his personal belongings, while also being responsible for community debts, including the mortgage.

The court's award to the wife was valued at $60,000, while the husband's total was $440,000. The trial court has discretion in property division under RCW 26.08.110, which requires just and equitable distribution considering the parties' merits, post-divorce conditions, property acquisition, and burdens. The De Ruwe case emphasizes the economic conditions resulting from the divorce as paramount. Appellate courts typically respect trial court decisions unless there is a clear abuse of discretion. Given the marriage duration, children's needs, and economic implications of the divorce, the property settlement was deemed reasonable, despite the trial judge lacking a description of the 4 or 5 acres awarded to the wife.

The case is remanded for the trial court to ensure a survey of the property awarded to the wife is completed and accurately described in the findings of fact, as mutual agreement between the parties is deemed unfeasible due to ongoing animosity. The defendant argues that the court improperly awarded custody of the children to the wife without assessing her fitness; however, the husband’s own admission in his cross complaint acknowledges her as a fit custodial parent. Although a remand for undisputed facts is typically unnecessary, it is warranted in this instance due to the remand for other reasons, thus requiring a finding on the wife's fitness for custody. The defendant also challenges the $500 attorney fee awarded to the plaintiff, but the court finds no abuse of discretion given the contested nature of the divorce and the significant property value involved. The judgment is affirmed with modifications, and both judges concur.