In re the Marriage of Park

602 P.2d 1123 | Or. Ct. App. | 1979

BUTTLER, J.

Husband appeals from an order modifying the orig-ial dissolution decree herein by renewing spousal ipport, the original provisions for which had expired ’ior to the filing of the motion to modify, and by tcreasing child support. He also contends the trial >urt erred in awarding wife attorney fees in connec-on with the modification proceedings. We affirm ithout discussion the modification of the decree with ¡spect to child support, and the trial court’s award of tomey fees; we modify the order insofar as it pro-des for spousal support.

The dissolution decree was entered November 12, >76, and required husband to pay wife by way of ousal support the sum of $500 per month for a period 24 months commencing December 1,1976. The last Lyment under that provision of the decree was due id paid November 1, 1978. On December 6, 1978, fe filed a motion for modification of the decree questing that the original decree be modified by quiring husband to pay wife spousal support in the m of $500 per month for an additional 24 months. In i order modifying the decree, the trial court ordered sband to pay wife $500 per month for a period of 12 rnths, commencing April 1, 1979. The question pre-ated is whether the trial court had authority to new spousal support payments pursuant to a motion lich was not filed until after the expiration of the lited period of time during which spousal support is required to be paid under the original decree.

No Oregon appellate court has addressed this ques-n. It is well settled, however, that if the original ;ree provides for no spousal support, no such support i be added to the decree at a later time, the leading >e being McFarlane v. McFarlane, 43 Or 477, 73 P 203, 75 P 139 (1903), followed by Saurman v. Saurman, 131 Or 117, 282 P 111 (1929); Peake v. Peake, 242 Or 386, 408 P2d 206 (1966); and Johnson v. Johnson, 245 Or 10, 419 P2d 28 (1966). Whatever the implication may be, these cases state that the court may only "modify” a decree, but may not "amend” it. In McReynolds v. McReynolds, 24 Or App 891, 547 P2d 664 (1976), this court held that where spousal support is awarded for a specified term, the court may modify the obligation, including an extension of the duration of support, where the motion to modify was filed prior to the time the original decree called for its termination.

None of those authorities disposes of the question before us, nor does the applicable statute, ORS 107.135(1)(a).¹ There is, however, a rationale to the cases: spousal support is an incident of the marriage relationship which survives a termination of the relationship only if provided for in the decree of dissolution; if the decree provides for support the provisions therefor may be modified at a later date where circumstances justify the modification because a duty to support exists at the time modification is sought. Where, however, no support is awarded at the time of the dissolution decree, neither spouse has a duty to support the other; that duty terminated with the dissolution of the marriage. It would seem to follow that where the original dissolution decree provided for support for a specified period of time, once that period has expired, the former spouse who was required to pay support is no longer obligated to support the other. In other words, the support requirements may be modified so long as the duty to support exists, but not thereafter.

Following that rationale, it is clear in this case that the husband’s duty to support the wife had expired prior to the time she filed a motion to modify that uty, and the motion came too late. The statutory anguage authorizing courts to "alter or modify so auch of the decree as may provide for * * * the support f a party” has remained substantially unchanged for aany years. As pointed out above, the Oregon courts onsistently have held that where no spousal support ms required in the original decree, none could be warded thereafter; yet the legislature has not hanged that rule.

We see no meaningful distinction between a case here the duty to support terminated because it was ot provided for in the original decree, and a case there it terminated by the express terms of the decree, i either case, there will be situations where, because ' changed circumstances subsequent to the termina-on of the duty, a reasonable argument may be made íat support ought to be awarded. Yet none may be warded by "amendment” because there would exist o duty to support at that time.

The order of the trial court modifying the dissolu-lon decree is modified by deleting therefrom para-Hraph 2, which requires husband to pay spousal sup-iprt to wife. Except as so modified, the order is af-Irmed.

Affirmed as modified.

1 ORS 107.135(1)(a) provides:

"(1) The court has the power at any time after a decree of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by law for service of a summons, to:

"(a) Set aside, alter or modify so much of the decree as may provide for the appointment and duties of trustees, for the custody, support and welfare of the minor children, or for the support of a party * *