Rowe v. Rowe

149 P. 533 | Or. | 1915

Mr. Justice McBride

delivered the opinion of the court.

The decree of the California court as to the sums to be paid for the maintenance and support of the minor was not a final decree under the statutes of that state. Those sections of the Civil Code bearing upon this subject are as follows:

‘ ‘ Sec. 138. Orders Respecting Custody of Children. In actions for divorce the court may, during the pend-ency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.

“Sec. 139. Support of Wife and Children on Divorce or Separation Granted to Wife. Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a' shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. ’ ’

1, 2. From the above'it will be seen that the California law reserves to the court entering a decree for the maintenance of a minor full power to vacate such order at any time, and the better authorities hold that such a decree is not within the “full faith.and credit” clause of the national Constitution: Sistare v. Sistare, 218 U. S. 1 (54 L. Ed. 905, 20 Ann. Cas. 1061, 28 L. R. A. (N. S.) 1068, 30 Sup. Ct. Rep. 682); Bleuer v. Bleuer, 27 Okl. 25 (110 Pac. 736); Mayer v. Mayer, 154 Mich. 386 (117 N. W. 890, 129 Am. St. Rep. 477, 19 L. R. A. (N. S.) 245). In Sistare v. Sistare, Mr. Chief Justice White sums up the authorities as follows:

“First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber Case, ‘ alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.’ Second, that this general rule, however, does not obtain where by the law of the state in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”

Here, so far as the allowance for the benefit of the child is concerned, the order is subject to vacation at any time, and under the rule stated is not final. So far as the amount claimed by the wife is involved, there is a finding of the court, or rather a conclusion of law, that she is entitled to a decree of divorce, the custody of the minor child, and the sum of $10 per month to be paid to her by the defendant. In this particular the decree itself does not follow the"conclusion, but adjudges that plaintiff in that suit have a divorce from defendant; that all property in her name remain her separate property; that she have the custody of the minor child; that defendant pay her $20 per month for the support of the child during its minority unless otherwise ordered; and that plaintiff have judgment for such monthly sum. It will thus be seen that plaintiff has not now, and never has had, a decree or judgment for the $10 per month alimony claimed by her, but only a finding or conclusion that she ought to have it. This is not such a judgment or decree upon which execution could have been issued either here or in California: 23 Cyc. 666; Broder v. Conklin, 98 Cal. 360 (33 Pac. 211). The decree of the California court was made a part of the complaint in the suit brought by defendant against her husband, and it therefore fully appeared that there was no final decree either for the payment of alimony or for maintenance of the child; and the Circuit Court of Pane County was without jurisdiction to render a decree enforcing the California decree. These considerations render it unnecessary to discuss other interesting propositions raised in the able brief of appellant.

The decree of the Circuit Court will therefore have to be affirmed; but, while we find ourselves unable by reason of the law to compel plaintiff in this proceeding to support his minor child, his conduct in refusing-to do so is morally so repugnant to our sense of what decency requires of him under the circumstances that we will not require defendant to pay the costs of this appeal.

The decree of the Circuit Court is affirmed, without costs to defendant in this court. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Bean concur. Mr. Justice Benson taking no part in this decision.