The question presented for decision is whether the original decree, properly construed, requires the defendant to pay for the support of the child until she reaches the age of 21, having in mind the fact that when the decree was entered she was under 18 at which time the statutory age of majority was 18, and the further fact that after the decree, but before she became 18, the age of majority was fixed by statute at 21.
The defendant contends that vested rights in the defendant were created by the original decree and that the holding of the trial court, requiring him to pay after the child reached the age of 18, deprived him of property without due process of law. He asserts that the court improperly gave retroactive effect to the statute fixing the age of majority at 21 and that such application would render the act unconstitutional. He *30 asserts further that he has fully discharged his liability for the support of the child by paying until she became 18 years of age.
It must be conceded at the outset, and in gеneral terms, that a judgment is personal property, giving rise to vested rights which the legislature cannot, by retroactive law, either destroy or diminish in value.
Roles Shingle Co. v. Bergerson,
The same may be said of many, but not all decrees in equity. 16 C. J. S. p. 690, n. 63. It remains, however, to determine the characteristics of a judgment or decree which give to it the effect of a vested right. The first аnd essential quality of such a judgment or decree is that it be a final determination of the rights of the parties.
“A judgment is the law’s last word in a judicial controversy. It may be defined as the final consideration, and determination by a court of the rights of the parties, as those rights presently exist, upon matters submitted to it in an action or proceeding.”30 Am. Jur. 821 , § 2.
The rule is more accurately stated by Freeman, who says:
“The lеgislature cannot set aside a judgment, nor can it empower any court to set aside a judgment which had been rendered and had passed beyond the control of the court prior to the passage of the act; * * 1 Freeman on Judgments, (5th Ed.) 395, § 204.
The defendant relies upon the case of
Livingston v. Livingston,
The Livingston case is distinguishable in this, that prior to the original decree in the case at bar, the Oregon statute provided: “At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have the power to set aside, alter or modify sо much of the decree as may provide for * * * the nurture and/or education * * *” of minor children. 2 O. C. L. A. § 9-915. The same section provides, however, “that such decree shall be a final judgment as to any instalment or payments of money provided for therein which have accrued up to the time either party shall move the court to set aside, аlter or modify the same; * *
It is firmly established, both by statute and decision, that a decree for future payments of support *32 money for the benefit of a child of the parties becomes a final judgment as to each instalment only upon the accrual date thereof. Minor children remain the wards of the court which decreed the divorcе and are not bound by any decree as to the source or extent of their maintenance. The court retains the power at any time after rendition of the decree, upon proper notice and showing, to modify such orders as to unaecrued instalments. 2 O. C. L. A. § 9-915.
It is significant that the courts of one state do not accord full faith and credit to judgments of a sister state unless the judgment is a final adjudication in full force in the state where rendered, capable of being there enforced by final process, and, where a decree of divorce relating to maintenance is subject to modification by the court rendering it, the full faith and credit clause does not require its еnforcement in another state.
Levine v. Levine,
It cannot be said that the original decree, which required defendant to support his minor child during the minority of said child, “or until further order of the court,” gave him a vested right to be immune to the further order of the court. The leading case on this subject aрpears to be
Rosher v. Superior Court of Los Angeles County,
9 Cal. (2d) 556,
“It is settled that the power of the court to make and modify orders for the support of minor children under section 138 of the Civil Code is independent of any reservation of authority in the original decree; that proper provision for their support may bе made at any time during the period of minority; that the propriety of the provision to be made is to be determined in the light of the circumstances existing at the time the application is made; and that even an agreement by the mother that she would not ask for such an order cannot bar the child’s right to apply for an order for proper support. Lewis v. Lewis,174 Cal. 336 ,163 P. 42 . Such an order cannot, therefore, be considered a judgment in the sense of its being a final adjudication of the rights and duties of the parent and the minor child. It was not intended to, and does not operate to, crystallize or limit the duty of the parent to support his minor child, but merely defines the extent of his duty during the life of the order. Dixon v. Dixon,216 Cal. 440 ,14 P. (2d) 497 ; Sherer & Co. v. Indus. Acc. Comm.,182 Cal. 488 ,188 P. 798 ; Lewis v. Lewis, supra; Watkins v. Clemmer,129 Cal. App. 567 ,19 P. (2d) 303 ; So. Cal. Edison Co. v. Indus. Acc. Comm.,92 Cal. App. 355 ,268 P. 415 . In Moore v. Superior Court,203 Cal. 238 ,263 P. 1009 , 1011, it' is said: ‘The language of section 138 of the Civil Code is read into every decree of divorce which purports to deal with the care, custody, and support of the minor children of the parties to the action, and, this being so, whatever orders or decrees the trial court may make or enter in the premises are not in the nature of final judgments which determine the relation of *34 the parties to each other, or to the action or to the snbject-matter over which the court has thus retained all of the jurisdiction which it had during every stage of the proceedings and pendency of such action.’ It follows that it cannot be said that any vested right with regard to his duty to suрport or care for his minor children is acquired by a divorced parent as a result of the divorce decree or custody orders made in connection therewith. Hence no such right is impaired by holding that the entry of a divorce decree or the making of a custody or support order does not operate to limit the petitioner’s liability to his minor child to the period of minority fixed by statute at the time of the entry of the decree or order. In the absence of any such decree, his obligation would continue throughout the extended period of minority. The divorce decree and support order neither separately nor in conjunction constitute a permanent and final adjudication of the extent of his obligation to support his minor child. ’ ’ .
This case is directly in point and disposes of any contention by the defendant that vested rights have been impaired by the order of the trial court.
Nor can it properly be claimed that retroactive effect is given to the Oregon statute which extеnded the age of majority from 18 to 21 years. When that statute was enacted the child of the parties was under 18 years of age. Her status as a minor at the time of the enactment of the statute was not changed, and the only direct effect of the statute was to extend the period of minority from one date in the future to a subsequent date in the future. As said in Eosher’s case, supra:
“The statutory amendment operates prospectively to extend the period of minority of a child who has not reached majority at the time it becomes effective. Indeed, it is not and could not be contended that the period of minority was not extended by the amendment for purposes other than the termination of the father’s obligation under the order.”
*35
Where a trial court has actually entered a final judgment and lost jurisdiction, it may reasonably be argued that a subsequent statute, authorizing a resumption of jurisdiction, should not be given retroactive effect. Such was the situation in the Livingston case, supra. Such an act opеrating directly on the court might constitute a legislative invasion of judicial power.
McCullough v. Virginia,
The defendant cites the case of
Kendall v. Kendall,
Reliance is also placed by defendant upon the case of
Blethen v. Blethen,
There is a fundamental distinction between a holding to the effect that a property settlement, based .on contract and approved by the court, creates a vested right on the one hand, and a holding to the effect that an order for the future payment of support for a minor child creates a vested right on the other.
The binding effect of a property settlement, based on contract and approved by the court, has been recognized by this сourt, which has also, without inconsistency, affirmed the power to alter decrees for the support of minors.
Taylor v. Taylor,
The defendant also cites
Nahorski v. St. Louis Electric Term. Ry. Co.,
There being no invasion of vested rights and no encroachment by the legislature upon judicial power by retroactive legislation, the only remaining question is one of construction.
The decree of the trial court directed the defendant Kiessenbeek to pay the sum of $30 each and every month during the minority of said child, or until further order of the court. The mandate of the supreme court, which the trial court must have intended to adopt, is even more general. It directed that the defendant pay the sum of $30 per month “for the suppоrt and maintenance of said child.”
Upon the issue of the construction of the decree, the defendant relies upon
Springstun v. Springstun,
“It is our opinion that the appellant has fully performed the decree. The language of the decree is *38 that the appellant shall make the monthly payments ‘during the minority’, of the daughter. The statute then in existence limited minority to the time the minor reached the age of 18 years. Seemingly, therefore, the decree is as definite and certain in that respect as it would have been had the decree expressly named the 18th year of the minor as the date of its expiration. ’ ’
This case was considered by the California supreme court and the construction adopted by the Washington court was rejected. We also reject it. As said in Eosher’s case, supra, “Such orders must be considered to have been made in the light of section 138 of the Civil Code, which empowers the court to provide for the minor child during the period of minority, and also in the light of the power of the state to change the period of minority.” The court added that the order, “in the absence of words of definite limitation in time, must be construed as continuing until majority or until changed circumstances require or render proper the granting of an application fоr modification. ’ ’
In view of the record and of the manner in which the case was entitled, it might well be argued in the case at bar that on March 25, 1940, the court, upon motion of the defendant and after hearing, exercised its reserved power to make a further order for support until age 21, regardless of the construction to be placеd upon the original decree.
See Blethen v. Blethen,
supra, and
State ex rel. Brookfield v. Mart,
*39
In the case of
Gelfert v. National City Bank of New York,
decided in the United States Supreme Court on April 28, 1941,
The paramount concern of the court is not with the defendant, nor with the plaintiff. The decree should be liberally construed in the interest of the child, whose nurture and education during minority is of concern to the state.
The order of the court requiring defendant to continue payments until his child reaches the age of 21 years is affirmed, with costs to the plaintiff.