§24.04 General Principles

• Jurisdiction: Washington

§ 24.04 GENERAL PRINCIPLES

Marriage dissolution is a statutory proceeding, and the jurisdiction and authority of the courts is prescribed by the applicable statute, the Dissolution of Marriage Act, RCW 26.09.010 and 26.09.040. In re Marriage of Moody, 137 Wn.2d 979, 987, 976 P.2d 1240 (1999). The court's authority to provide for temporary relief is authorized by specific statutes as well as the court's inherent jurisdiction or authority. See, e.g., In re Ways' Marriage, 85 Wn.2d 693, 699-700, 538 P.2d 1225 (1975). The party with the burden of proof must show that he or she is entitled to relief by the preponderance of the evidence. In re Marriage of Allen, 28 Wn. App. 637, 626 P.2d 16 (1981) (preponderance of the evidence used for custody decision under the former RCW 26.09.090); In re Marriage of James, 79 Wn. App. 436, 442, 903 P.2d 470 (1995) (burden of proof for contempt proceeding is preponderance of the evidence).

Each type of relief in a temporary order is separate and distinct. A party may not, for instance, condition payment of child support upon the other parent's complying with the terms of a parenting plan. See RCW 26.09.160(1).

[1] Property Issues and Financial Restraints

Chapter 26.09 RCW does not explicitly authorize the court to order use or possession of property on a temporary basis. RCW 26.09.060 authorizes the court to

(1) grant temporary child support or maintenance;
(2) grant a temporary restraining order or preliminary injunction "providing relief proper in the circumstances" and restraining or enjoining any person from transferring, removing, encumbering concealing, or in any way disposing of property except in the usual course of business; molesting or disturbing the peace of the other party; going onto the grounds of or entering the home, workplace, or school of the other party or the daycare or school of any child; removing a child from the jurisdiction of the court; or
(3) grant a temporary domestic violence protection order.

RCW 26.09.060(1)-(3). But see RCW 7.105.310(1)(m) (specifically authorizing the court in entering domestic violence protection orders to "[o]rder possession and use of essential personal effects.").

Although the phrase "providing relief proper in the circumstances" is not defined in the statute, it appears that the literal language of the statute places some limit upon the court's statutory authority. In a divorce action, all property, both community and separate, comes before the court. Webster v. Webster, 2 Wash. 417, 26 P. 864 (1891); Suther v. Suther, 28 Wn. App. 838, 627 P.2d 110 (1981). Furthermore, the courts have held that the trial court has wide discretion in equitably disposing of marital property. In re Marriage of Thompson, 32 Wn. App. 179, 646 P.2d 163 (1982); Peterson v. Peterson, 3 Wn. App. 374, 475 P.2d 576 (1970).

It has been widely assumed that the court has broader authority as a court of equity to make temporary orders that preserve assets or restrain conduct that would interfere with the court's ability to exercise its statutory or equitable authority. See Carney v. Carney, 114 Wash. 268, 194 P. 991 (1921) (upholding court's authority to order that a mortgage be renewed); 19 Scott Horenstein, WASH. PRAC.: FAM. & CMTY. PROP. L. WITH FORMS § 26:12 (2015 & Supp. 2020). The court's equitable powers are available when there is no adequate remedy at law. Orwick v. City of Seattle, 103 Wn.2d 249, 252, 692 P.2d 793 (1984). For instance, in Standard Insurance Co. v. Schwalbe, 110 Wn.2d 520, 755 P.2d 802 (1988), the Washington Supreme Court held that the trial court had authority to void a husband's change in beneficiary status that violated a temporary restraining order.

Comment: What are the limits of the court's statutory authority? Clearly, the court may, through issuance of a restraining order or injunction, prevent a party from liquidating a bank account or disposing of an asset. What is the court's authority to authorize temporary use of property? For instance, can the court order the sale of the marital residence in a temporary order if sale is not required to preserve the equity and neither party needs to use the equity prior to trial? Washington courts have not directly addressed this issue, although several cases stand for the proposition that the court has the authority to order a forced sale of the marital residence as part of a property division. In re Marriage of Foley, 84 Wn. App. 839, 930 P.2d 929 (1997); In re Marriage of Sedlock, 69 Wn. App. 484, 849 P.2d 1243, review denied, 122 Wn.2d 1014 (1993).

In difficult economic times, courts may be confronted with cases in which it is impossible simply to preserve the status quo for trial because of emergent financial issues (e.g., bankruptcy, short sales of real property, refinancing disputes, and debt "workouts" with creditors).

RCW 26.09.060(6) provides that the court may waive filing of a bond or posting of security for the issuance of a temporary restraining order or preliminary injunction. In family law cases, the court will order the filing of a bond or posting of security in extraordinary cases in which the restraint or injunction may interfere with a complex financial transaction or business deal, resulting in a substantial loss to a party or the community. In very unusual cases, a court may require bond or security for out-of-state travel with a child when there has been a prior history of child abduction or wrongful withholding of substantial residential time. See § 24.03[2], above. However, in most cases, the court will simply waive bond or security requirements.

[2] Child Support and Maintenance

RCW 26.09.060 explicitly authorizes the court to enter a temporary order for child support or spousal maintenance. (Also see RCW 26.26A.470(1) for authority to enter child support in parentage cases.) Although a temporary support order is ordinarily issued as part of a dissolution of marriage or parentage action, support orders may also be issued in dependency actions under Chapter 13.34 RCW. See Chapter 28 (Child Support) of this deskbook for a full discussion, including the support table and methods for imputation of income.

[a] Child Support

The child support schedule, RCW 26.19.020, must be used in setting temporary child support. RCW 26.19.035(1). A completed financial declaration (mandatory form) with all required attachments should be submitted with, or in response to, any motion for temporary child support, so that the court can accurately determine the income and deductions for each party according to the child support schedule. It is also necessary to review local rules to see what other financial documents must be submitted with the motion for child support or any financial relief. See Chapter 28 for a full discussion of child support.

[b] Maintenance

Temporary maintenance (referred to in early cases as "alimony pendente lite") has been defined as "a reasonable allowance for prosecution of the suit as well as for support." Davis v. Davis, 15 Wn.2d 297, 307, 130 P.2d 355 (1942).

As a general matter, the decision whether to award maintenance is within the sound discretion of the trial court. See, e.g., In re Marriage of Crosetto, 82 Wn. App. 545, 918 P.2d 954 (1996). Cases specifically addressing the standards for temporary spousal maintenance are scant. Those cases decided before the enactment of the Dissolution of Marriage Act of 1973 follow the common-law rule that the spouse seeking maintenance must show need and the other spouse's ability to pay. See, e.g., Murray v. Murray, ...