Matter of Marriage of Eagen

640 P.2d 1019, 292 Or. 492, 1982 Ore. LEXIS 716

• Court: Oregon Supreme Court
• Decided: February 10, 1982
• Docket: CA 18270, SC 27951
• Status: Published

Opinions

TANZER, J.

This is an appeal from an order allowing credit for unpaid accrued child support. The marriage of the parties was dissolved in 1973. Custody of their 11-year-old child was awarded to the mother and the father was ordered to pay $150 per month child support until “further order of this court or until said minor child attains age 21, dies or marries or becomes self-supporting or otherwise emancipated, whichever first occurs.” Despite the decree, the child lived with the father continuously since the dissolution until she married in November, 1977, except for one month when she stayed with her mother. The father made no support payments.

In June, 1980, the father moved for an order giving him credit for all child support payments accrued since the decree because the child had lived with him and then married. For “equitable considerations,” the trial court ordered the judgment for accrued child support payments satisfied as of the date of the dissolution forward, with the exception of $150 for the month during which the child lived with the mother. The Court of Appeals, in banc, affirmed, for equitable reasons, among others. The dissenting judges concluded that no credit was allowable regardless of equitable considerations.

This case is governed by ORS 107.135(2)¹ which provided:

“The decree is a final judgment as to any instalment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion.”

Before the enactment of the statute, this court had held that an order for periodic support payments was merely personal and was too indefinite to be enforceable by judgment lien. The court later acknowledged in Forbes v. Jennings, 124 Or 497, 264 P 856 (1928), that the purpose of the enactment of what is now numbered ORS 107.135(2) was to raise support orders to the dignity of judgments, enforceable as such. The general rule is that courts may deem a judgment satisfied only if paid according to its terms or in an alternative manner agreed to by the parties as satisfactory:

“Except where a judgment by its own terms provides otherwise, a judgment for the payment of money can be satisfied only in money, unless the owner of the judgment chooses to accept property, securities, or some other thing of value * * *.

“In order that the acceptance of something other than money may operate as a satisfaction, there must be a positive and express agreement to accept the substitute for direct payment of the judgment. * * *” (Footnotes omitted.) 49 CJS Judgments § 552, pp 1022-1023 (1947).

If this were a proceeding in which the mother was seeking an order of support, her tacit agreement to the father’s actual support of the child would have been material as a defense. After judgment, however, any such defense is immaterial because all defenses merge into the judgment, Security Inv. Co. v. Miller, 189 Or 246, 251, 218 P2d 966 (1950); see also Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, 1973). Such pre-judgment conduct cannot be deemed an agreement to accept an alternative form of satisfaction of the subsequent judgment.

In Poe v. Poe, 246 Or 458, 425 P2d 767 (1967), this court rejected a motion to set aside an accrued judgment based upon a claim of estoppel. We held that the above statute barred the setting aside of a judgment:

“This court has repeatedly held, since the finality of the installment judgment was added to the statute in 1921 (Oregon Laws 1921, ch 114, p 225), that the court is without power to modify or change support money payments once they have become a judgment. Shelley v. Shelley, 1955, 204 Or 436, 283 P2d 663, reviewed the previous cases and confirmed that the statute does not permit the court to alter the prior installment judgment.” 246 Or at 459-460.

Although Poe involved estoppel, it is consistent with the broader proposition that judgments cannot be set aside for equitable reasons, except for fraud or duress or some equally egregious reason.² We are aware that some courts have set aside support judgments for equitable reasons, contrary to the general rule and to our holding in Poe, see Annot., Child Support — Right to Credit, 47 ALR3d 1031 (1973), but those holdings do violence to principles protecting the integrity of judgments and have ramifications far beyond the law of domestic relations.

There is language in Briggs v. Briggs, 178 Or 193, 165 P2d 772, 166 ALR 666 (1946), suggesting a general rule to the contrary. The language used and authorities cited in Briggs are not conclusive as to what rule was actually adopted as a rationale for the decision. The holding was consistent with our holding today: payments made directly to the children were not credited against accrued unpaid alimony and support. The order allowing certain credits, to which the dissent refers, was not in issue because it was consented to by the plaintiff, as the court expressly noted. 178 Or at 203.³

The remedy afforded to the noncustodial father in Ellis v. Ellis, 292 Or 502, 640 P2d 1024 (1982), is not available to the father in this case. There we held that an order declaring the noncustodial parent’s support obligation to have terminated when the child was emancipated merely clarified the application of the decree and did not modify it. In this case, by operation of the decree, the father’s obligation continued as long as the mother had legal custody of the minor child and that state continued to exist until the child’s marriage. For us to hold otherwise would be, in effect, a retroactive modification of the custody and support provisions which is prohibited by ORS 107.135(2).

We share the concern of the Court of Appeals not to “countenance this mother’s singularly unjust effort to undo the past and collect $10,500 which was decreed for child support and which the father has in fact paid,” but we are obliged under the applicable Oregon statutes to hold that the father is not entitled to a satisfaction of judgment for the period from the date of the divorce to the marriage of the child. Because no such issues are presented to us, however, we express no opinion concerning the availability of other collateral remedial relief such as proceedings to enjoin enforcement of the judgment. Mason v. Mason, 148 Or 34, 34 P2d 328 (1934).⁴

Modified. The order directing satisfaction is modified to apply only to those payments accrued under the decree from November, 1977, forward. No costs to either party.

1 The legislature has since dealt with this problem by amending ORS 107.135(2) by adding:

“However, the court may allow a credit against child support arrearages for periods of time, excluding reasonable visitation unless otherwise provided by order or decree, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent.” Or Laws 1981, ch 855.

2 See, e.g., Slate Const. Co. v. Pac. Gen. Con., Inc., 226 Or 145, 359 P2d 530 (1961), and O.W. R. & N. Co. v. Reid, 155 Or 602, 65 P2d 664 (1937).

3 The dissent also cites Chapman v. Chapman, 177 Or 239, 161 P2d 917 (1945), which is not in point. There, this court reversed a circuit court modification of a custody award and, as we read the opinion, gave credit to the respondent for care provided during the pendency of the modified order, 177 Or at 244. If the court had intended a broader holding, it would surely have cited Chapman in the Briggs opinion only a few months later.

4 Certain of the reasoning in Mason was disavowed in Briggs, 178 Or at 201, but the holding allowing a suit to enjoin enforcement of a judgment has not been overruled to date. See also Parker v. Reid, 127 Or 578, 581-582, 273 P 334 (1928).