Hansen v. Hansen

198 P. 207, 103 Or. 17, 1922 Ore. LEXIS 137

• Court: Oregon Supreme Court
• Decided: January 24, 1922
• Status: Published

Opinions

HABEIS, J.

The plaintiff has filed with our clerk a motion

“to compel the defendant to pay the temporary alimony heretofore awarded to the minor children in the above-entitled cause in the sum of $30 per month, and which same is now delinquent in the sum of $180, and that he he compelled to pay said amount thereafter each month in said sum of $30 as prayed for and shown by the affidavit hereto attached.”

The affidavit attached to the motion avers that “about one year ago” the plaintiff commenced a suit for a divorce against the defendant; that “shortly thereafter” the plaintiff made application for maintenance for the two minor children and that the Circuit Court made an allowance of $30 per month; that “thereafter” the cause was tried and the court awarded the custody of the two minor children to the plaintiff and decreed that the defendant pay $50 per month for the maintenance of the children; that thereafter the defendant appealed to the Supreme Court where the cause is now pending; that “shortly after the appeal” the defendant “refused to pay any alimony for the support of the said minor children,” and the plaintiff caused the defendant to appear in the Circuit Court “and show cause why he should not he compelled to pay said alimony”; and that upon the showing made by the defendant the Circuit Court “decided that as the cause was appealed to the Supreme Court that he had lost jurisdiction not only over the decree hut also over the order allowing the temporary alimony, and therefore dismissed said proceeding”; that the defendant “is now delinquent in his payment in the sum of $180 or for the period of six months at the rate of $30 per month.”

The affidavit does not make it entirely clear whether the snm of $180, alleged to he delinquent, includes any installments accruing’ before the rendition of the decree in the Circuit Court. However, we' infer from the affidavit that the defendant paid the. monthly installments regularly until the rendition of the decree in the Circuit Court, and that the defendant did not refuse to pay monthly installments until “shortly after the appeal.” If this inference is correct the motion of the plaintiff presents a situation where the wife is asserting that the order made on the authority of section 512, Or. L., providing for maintenance during the pendency of the suit, continues to be effective until the suit is finally disposed of on appeal, and that the order continues to be effective notwithstanding the undertaking on appeal recites that the principal and his surety agree that the defendant

“will pay all damages, costs and disbursements which may be awarded against him in said suit on the appeal, and that if the said decree or any part thereof be affirmed, the defendant will satisfy the same so far as affirmed.” See Section 551, subd. 1, Or. L.

The claim involved in the motion of the plaintiff is one which might present many interesting questions if the record permitted discussion of the merits of the claim: See 19 C. J. 190.

1. This tribunal exercises appellate jurisdiction, and, with comparatively few exceptions, is without original jurisdiction. If this court possesses any jurisdiction over the matter involved in the plaintiff’s motion it is appellate in its nature: See Taylor v. Taylor, 70 Or. 510 (131 Pac. 1183, 110 Pac. 999). Our jurisdiction, if any we have, being appellate, must be based upon a duly authenticated record of the doings in the Circuit Court and not upon an affidavit originally filed in this court and purporting merely to narrate the occurrences in the Circuit Court.

2. There is on file with our clerk a copy of the decree appealed from, the notice of appeal and proof of service thereof and of the undertaking on appeal as required by Section 554, Or. L. Upon examination of the copy of the decree we learn that the plaintiff obtained a divorce; that she was awarded the custody of the minor children; that the defendant was ordered to pay to the plaintiff $50 per month for the support of the minor children; and that the defendant was required to pay the sum of $50 as suit money in addition to an allowance that had been previously made. The decree makes no reference to the order which required the payment of $30 per month pending the suit. We have examined the transcript of testimony and, although we find a reference to “an allowance of $75 heretofore made” as suit money, we have not. discovered in the transcript any reference to the order for the payment of maintenance pending the suit. The printed abstract is likewise silent upon the subject' of the order for the payment of money for the support of the children during the pendency of the suit. In brief, the only information which we have concerning’ any order for the payment of money for the support of the children during the pendency of the suit comes from the motion and original affidavit filed by the plaintiff in this court; and, therefore, even though the record is sufficient to give this court appellate jurisdiction over the final decree, the record is not sufficient to enable us to discuss or consider or review the order which it is said the Circuit Court made directing the payment of $30 per month for the support of the children pending the suit.

The motion filed by the plaintiff is denied.

Motion Denied.