The wife appeals from a decree dissolving the nine-year marriage of the parties, assigning as error the division of property, failure to provide spousal support, terminating temрorary spousal support nunc pro tunc, and failure to allow the full amount she claimed to have incurred for attorneys’ fees.
At the time of the marriage, wife was 44 and husband was 37. Prior thereto, the wife had suрported herself by performing domestic services, including such services for husband, and had accumulated savings of approximately $16,000; husband was purchasing on contract a ranch which he was operating with the help of his children by a prior marriage. Shortly after the marriage, husband lost the ranch, having defaulted on the contract. Thereafter, he operated a grain hauling business, averaging approximately $12,000 per year net before taxes for the three years preceding the separation of the parties in June of 1976. Wife, in addition to performing househоld chores during the marriage, assisted in the business on a regular, part-time basis, keeping the books, paying bills, etc,, and, on occasion, moving equipment from one location to another.
During thе marriage, the wife exhausted her life’s savings by contributing one-half of the down payment on a new $30,000 home purchased by the parties, and by putting $11,000 down on a new truck and trailer purchased for the grаin hauling business. Husband viewed these payments by wife as loans.
At the time of trial, at least two of the husband’s children were living in the home purchased during his marriage to wife; wife was living with her mother and brother in a small hоme owned by wife and her brother. The remaining assets consisted of furniture and furnishings, farming equipment, a few head of cattle, some old motor vehicles, a small amount of
The trial court’s approach to the division of prоperty was equitable. The husband had more need for the family home and the wife owned an undivided interest with her brother in a smaller home; the husband had more need for the equipment used in his business. A lump sum awаrd to the wife, allowing the husband a reasonable time within which to pay it, is appropriate. However, postponing the wife’s use of her share of the division of property for two years without interest conflicts with this court’s opinion in McCoy and McCoy,
In accordance with McCoy, we modify the decree
With respect to sрousal support, the trial court properly applied the guidelines set forth in ORS 107.105(l)(c), as elaborated in Kitson and Kitson,
After commencement of this suit, and before the decree, the trial court entered an order requiring husband to pay wife $150 on the 15th day of each month for her support "pending the determination of the issues in this suit.” Husband paid this support money through December, 1976. Trial was had on January 5, 1977, and on January 10, the court rendered its memorandum opinion disposing of the principal issues, in which the court ruled that no spousal support would be awarded. Thereafter husband failed to make support payments pursuant to the prior order. The decree waá not entered until Marсh 28,1977, and provided that the prior order be "cancelled and terminated as of January 5, 1977.” Wife contends the trial court should have included in the decree a judgment against husband for the three mоnths support remaining unpaid under the earlier order (ORS
Unless the trial court’s January 10 memorandum opinion stating, inter alia, that "spousal suppоrt will not be awarded” constituted an order terminating the temporary support, each payment under the temporary support order became a judgment after its due date if not paid, ORS 107.095(2),
Accordingly, we must conclude that the decree entered March 28, 1977, could not terminate the
"* * * No court can rightly enter an order nunc pro tunc unless the transaction to be recorded actually took place at the prior date. The record must speak the truth and nothing can be entered nunc unless it actually happened tunc * *
See Gow v. Multnomah Hotel,
The failure of the trial court to enter a judgment in favor of wife for the amount of temporary support payments in arrears at the time of the decree, as authorized by ORS 107.105(l)(h), did not have the effeсt of cancelling the judgment debts resulting from the husband’s failure to make those payments. They had ripened into judgments on which execution could issue, ORS 107.095(2), regardless of whether the court so provided in thе decree.
The situation here is different from that presented on a motion to modify support payments under a decree, in which case we have construed ORS 107.135(2) to permit the court tо make any modification retroactive to the date of filing the motion. Walker v. Walker,
We find no reason to disturb the trial court’s allowance of $750 to wife on account of her attorneys’ fees. See Craig and Craig,
Affirmed as modified. Costs to appellant.
Notes
ORS 107.105(l)(h) provides:
"(1) Whenever the court grants a decree of annulment or dissolution of marriage or of separation, it has power further to decree as follows:
"4: # * * sj«
"(h) A judgment against one party in favor of the other for any sums of money found to be then remaining unpaid upon any enforceable order or orders theretofore duly made and entered in the proceedings pursuant to any of the provisions of ORS 107.095, and for any such further sums as additional attorney fees or additional costs and exрenses of suit or defense as the court finds reasonably and necessarily incurred by such party; or, in the absence of any such order or orders pendente lite, a like judgment for such amount оf money as the court finds was reasonably necessary to enable such party to prosecute or defend the suit.”
ORS 107.095(2) provides:
"(2) In case default is made in the payment of any moneys falling due under the tеrms of an order pending suit, any such delinquent amount shall be entered and docketed as a judgment, and execution may issue thereon to enforce payment thereof in the same manner and with like effect as upon a final decree. The remedy provided in this subsection shall be deemed cumulative and not exclusive.”