Brandt v. Brandt

67 P. 508, 40 Or. 477, 1902 Ore. LEXIS 21

• Court: Oregon Supreme Court
• Decided: January 27, 1902
• Status: Published

Opinion

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

1. It is first insisted that the provision for permanent alimony is in excess of the relief to which the plaintiff was entitled under the averments and prayer of her complaint. Under the prayer for general relief the plaintiff is entitled to such relief as is consistent with the averments and within the scope of the complaint. It is alleged that defendant was possessed of property of the value of $9,000 and had a monthly income amply sufficient for the maintenance of himself, his wife, and her daughter according to their station in life; and, permanent alimony being an incident to the divorce, the provision complained of was within the scope of the complaint, and the relief was authoritatively granted by the decree: 16 Ency. Pl. & Pr. 804, 807, 808; Darrow v. Darrow, 43 Iowa, 411.

2. It is next insisted that the statute of limitations had run, so that it was not competent for the court to revive the decree and direct the issuance of an execution. This depends upon whether the writ of execution of December 17,1897, by virtue of which a sale of the property was attempted to be made, was void for uncertainty in describing the decree upon which it was issued. The description is contained in the preamble, and is as follows: “'Whereas, on the twentieth day of April, 1889, by consideration of the Circuit Court of the State of Oregon for the County of Lane, Alice O. Brandt, plaintiff, recovered judgment against A. Park Brandt, defendant, for the sum of one hundred and twenty-eight and no one-hundredths ($128.00) dollars, damages and costs, which judgment was enrolled and docketed in the office of the clerk of said court on the second day of May, 1889. ’ ’ It will be noted that no reference is there made to the provision for permanent alimony. The statute provides that if, at any time after the entry of the judgment, a period of ten consecutive years shall have elapsed without an execution being issued thereon, no execution shall thereafter issue, and the judgment shall be conclusively presumed to have been paid: Hill’s Ann. Laws, § 295, as amended by Laws, 1893,p. 26. We take it that an execution such as is sufficient, under a decree upon which it is based and issued, to support a deed to property sold under and in pursuance thereof, will be sufficient also to revive, beep alive, or continue in force the decree itself. The analogy is apparent, and the deduction legitimate. Suppose that realty should be sold under the execution now in the hands of the sheriff, and the purchaser’s title was questioned. Would the execution of December 17, 1897, be received as evidence to show that the decree was not barred by the'ten years’ lapse of time? If sufficient to support a deed in the first instance, it surely would be sufficient to show a live judgment or decree when the execution was issued under which the sale was made. Now, the inquiry tó be made, where the execution is offered in support of a deed, is, did- it issue on the decree that is produced to support it? If it is manifest from the writ, taken in its entirety, that it did, then it must bé held to be effective. Now, the more rational and wholesale rule seems to be, where sufficient appears upon the* face of the writ to unmistakably connect it with the judgment or decree, to disregard variances as it respects the names of .parties, dates, and the amount recovered: 1 Freeman, Ex’ns (3 ed.), § 43; Alderson, Jud. Writs, § 53; Hunt v. Loucks, 38 Cal. 372 (99 Am. Dec. 404); Cooley v. Brayton, 16 Iowa, 10; Cunningham v. Felker, 26 Iowa, 117. We adopt this rule, therefore, for the present purpose, inasmuch as this is a collateral attack as it respects the particular execution concerned.- No one can doubt, upon a reading of the writ, that it was issued upon the final decree entered in this cause.

3. The next and final contention is that the decree, in so far as it awards the plaintiff $20 a month permanent alimony, should be annulled as of the date of its entry. This involves two questions: (1) Whether it is within the power of the court so to annul it; and (2) whether it is equitable and just, under the showing of the respective parties, to do so. It is conceded that, within the doctrine of Corder v. Speake, 37 Or. 105 (51 Pac. 647), and Henderson v. Henderson, 37 Or. 141 (82 Am. St. Rep. 741, 60 Pac. 597, 61 Pac. 136, 48 L. R. A. 766), the court may set aside, alter, or modify a decree respecting permanent alimony. But it is denied that it is authorized to make any order in the premises that could operate retrospectively, and thus cut off alimony that had previously accrued under the decree granting it. There is a cleavage among the authorities touching the nature of alimony granted in connection with an absolute divorce. At common law the allowance made for the support of the wife, where there was a separation a mensa et thoro, was denominated “permanent alimony,” and many authorities, treating the allowance made after divorce absolute as inuring upon like principles, have therefore declared that it was competent for the courts to revise, modify, or cut it off altogether, according as the changed conditions of the parties concerned and equitable considerations may suggest. Other of the authorities treat the allowance, whether in gross or in periodical payments, as an adjudication of property rights in assimilation to a settlement of partnership affairs, where the wife’s property of which the husband has become possessed, the accumulations during coverture, her inchoate dower, and the obligations to support her in a manner suitable to her station in life, are all taken into account, and the alimony granted in lieu thereof; and hence they have declared that the decree becomes a matter res adjudicata and insusceptible of future revision or modification. Our statute, however, as construed by the decisions above cited, is broad enough to permit of the setting aside, alteration, or modification of the provision made for the maintenance of either spouse. To set aside is “to annul, to make void”:. Bouvier, Law Diet. Anything less than an annulment would be an alteration or modification. So it would seem that the court is clothed with power adequate to set aside, as well as to alter or modify, a provision for permanent alimony or allowance as the exigencies of the case may require.

4. Notwithstanding, the allowance should be treated as res adjudícala as to the then existing circumstances and conditions, and not subject to annulment or modification, except upon new conditions subsequently arising, or, perhaps, upon facts occurring before the decree, of which the party was excusably ignorant at the time of its rendition: Wilde v. Wilde, 36 Iowa, 319; Reid v. Reid, 74 Iowa, 681 (39 N. W. 102); White v. White, 75 Iowa, 218 (39 N. W. 277); Semrow v. Semrow, 23 Minn. 214; Weld v. Weld, 28 Minn. 33 (8 N. W. ). And where the allowance proceeds from a consideration of the restitution of property brought to the husband by rea-' son of the marriage, or the partition of property accumulations, it should be regarded as a final adjudication of the matter: Cole v. Cole, 142 Ill. 19 (31 N. E. 109, 19 L. R. A. 811, 34 Am. St. Rep. 56). But where it is made as a matter of support and maintenance merely, then the changed condition of the parties, as where the faculties of the husband have diminished, or the divorced wife has acquired other facilities or means of support, will warrant such a revision or modification, diminishing or cutting off the allowance in tolo, as may seem reasonable and proper [Cole v. Cole, 142 Ill. 19 (19 L. R. A. 811, 34 Am. St. Rep. 56, 31 N. E. 109); Stillman v. Stillman, 99 Ill. 196 (39 Am. Rep. 21); Lennahan v. O’Keefe, 107 Ill. 620; Bowman v. Worthington, 24 Ark. 522; King v. King, 38 Ohio St. 370; Olney v. Watts, 43 Ohio St. 499 (3 N. E. 354) ], and the decree may be made to operate retrospectively: Morgan v. Bowman, 80 Ill. App. 557. The remarriage of the wife is a persuasive circumstance, calling for an exercise of the court’s discretion and authority to modify or rebate the allowance: Albee v. Wyman, 10 Gray, 222; Bowman v. Worthington, 24 Ark. 522; Morgan v. Bowman, 80 Ill. App. 557; Olney v. Watts, 43 Ohio St. 499 (3 N. E. 354); Stillman v. Stillman, 99 Ill. 196 (39 Am. Rep. 21).

5. A consideration of the original decree and the grounds upon which it is based indicates that the allowance did not proceed from any consideration of property rights of the wife, but merely as a provision for her support and maintenance, together with the support and maintenance of her daughter. The daughter, it should be noted, was the child of a former husband, and not of the defendant. Some nine months subsequent to her divorce, the plaintiff married Shurtliff, and continued to be his wife for more than six years, during which time it is alleged, and not denied, that he supported her adequately according to her station in life; and this of itself ought to relieve the defendant of her support. It seems somehow inconsistent, from the standpoint of morality and public policy, that a wife should be receiving support from a former divorced spouse, while she is by reason of existing marital ties entitled to look to an actual spouse for maintenance of the same nature; and, if this is true while the marital relations exist, why should the right of support by the former husband be revived when the latter husband divorces her for cause? By this reasoning, we do not mean to be understood as holding that a subsequent marriage will ipso facto dissolve the obligation of the former husband to continue the payment of the allowance, for the authorities do not seem to go so far; but we do mean to say that it affords a cogent and convincing reason for the court to modify or cut off the allowance altogether. The plaintiff avers that since her late husband deserted her— which is equivalent to saying since he procured a divorce from her, for such is the admitted fact — she has been obliged to earn her own living, and that she is without property or means. But this cannot serve to reinstate her to her former condition. The question of accepting support from her subsequent husband was a matter necessarily deferred to her own choice, and she must be held in a measure to have renounced her allowance, to the extent, at least, of her latter husband’s ability to respond. In this instance he was able to, and did, support her adequately. That support has been cut off by no fault of the defendant, and there are no considerations of right or equity that would require him to again assume the obligation. It is quite probable that defendant has been led to believe that he was not held to the payment of the allowance, although he is chargeable with knowledge that such an allowance was actually made, and this accounts in some measure for the great lapse of time without any effort to respond, and the plaintiff has only recently become importunate in exacting the permanent allowance, which at this time has increased to a large sum.

In consideration of the conditions revealed by the record, the allowance will be discontinued and annulled from and after January 20, 1890, which is about the date of plaintiff’s subsequent marriage. The annulment of the sale under the execution of December, 1897, will not be disturbed, but the execution now in the hands of the sheriff will be recalled, and an order and decree now entered directing execution to issue for $128, as costs and expenses pendente lite, and the further sum of $180, permanent alimony, with interest on the former sum at eight per cent, per annum from April 20, 1889, and upon the latter at the same rate from January 20, 1890, diminished by .the defendant’s costs and disbursements incurred by this proceeding, both in the trial court and upon the appeal; he being entitled to recover the same from the. plaintiff. Modified.