Shannon v. Shannon

239 P.2d 993, 238 P.2d 744, 193 Or. 575, 1951 Ore. LEXIS 313

• Court: Oregon Supreme Court
• Decided: December 21, 1951
• Status: Published

Opinions

BRAND, C. J.

This is a suit to establish and enforce in this state an interlocutory and final decree of divorce which was rendered in the Superior Court of the state of Washington for the county of Cowlitz. The decree was for the plaintiff and the defendant appeals. The original complaint was filed on 80 September 1948. Paragraph 2 of the amended complaint reads as follows:

“That on the 20th day of April, 1936, a decree was entered in the Superior Court of the State of Washington for the County of Cowlitz, making final an interlocutory decree of divorce entered in said Court on the 14th day of July, 1933. Under the terms of said decree the defendant herein, Elmer Shannon, was required to pay Plaintiff the sum of $20.00 per month on the 21st day of July, 1933, and a like sum on the 21st day of each and every month thereafter until the further order of said Superior Court, and in addition thereto attorneys’ fees in the sum of $75.00. An exemplified copy of said decrees are hereto attached as Exhibit I and made a part of this complaint. * * * ”

The allegations of this paragraph are admitted by the defendant. The complaint also alleges that the defendant has made no payments as ordered in the decree and that demand for payment has been made, that the defendant is owner of real and personal property in Baker County, Oregon, and will dispose of the same in order to avoid execution thereupon. The prayer is for the entry of the Washington decree and for its enforcement by the Oregon court. The trial court entered a decree, in part, as follows:

“* * * that the judgment and decree heretofore entered in the Superior Court of the State of Washington, County of Cowlitz, be and the same hereby is entered of record of this Court as of the 30th day of September, 1948, and shall become binding upon the defendant as a judgment and decree of this Court from said date * *

It was also held that the plaintiff was entitled to judgment against the defendant for 72 payments of $20 each, amounting to the sum of $1,440 plus interest in the sum of $542, both sums to bear interest from the date of the commencement of the suit. The transcript of testimony is prepared in violation of Rule 6 of this court in the following respect: The name of the witness is not written at the bottom of each page of the transcript of testimony. Failure to comply with this rule is the cause of considerable inconvenience to this court. Such failure is inexcusable. In the absence of any motion to strike the transcript, and in this instance, we will overlook the breach.

In the trial court two defenses were presented, the first based upon the statute of limitations, and the second based upon a plea of estoppel. It is asserted that the plaintiff “informed defendant that she did not desire him to pay any of the sums of money specified in said decree directly to her, but rather that the defendant should pay any moneys so decreed directly to his said children * * Defendant alleges that he relied upon the alleged statement and paid the children sums in excess of the amount specified in the decree. The trial court found against the defendant on both issues. Only one assignment of error is presented to this court on appeal. It reads as follows:

“The Court erred in overruling defendant’s demurrer that the Amended Complaint does not state facts sufficient to constitute a cause of suit in that among other things it affirmatively appears from such Amended Complaint that the Washington judgment upon which plaintiff’s cause of suit is based is lapsed and is of no further force, effect or validity, or in failing to find that the statute of limitations of both the states of Washington and Oregon had run against the same long prior to the commencement of this suit, and that both said interlocutory order and said final decree were at the time of the commencement of this suit and long prior thereto and are no longer of any force or effect.”

The only issue argued by the appellant relates to the statute of limitations. We shall therefore confine our consideration to that issue.

In a brief of about seven pages, the defendant contends that the statute of limitations “began to run from the date of the first unpaid installment which was July 21,1933, in the interlocutory decree and April 20,1936 for the final decree”, and that, therefore, the statutes of limitations of both states of Washington and Oregon had run prior to the commencement of the Oregon suit in 1948.

The plaintiff takes the position, which was adopted in theory by the trial court, that where money is ordered to be paid in installments for child support, each installment constitutes a new judgment and the statute begins to run on each installment from its due date. Our statute provides:

“When the cause of action has arisen in another state, territory, or country, between non-residents of this state, and by the laws of the state, territory, or country where the cause of action arose, an action can not be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this state.” OCLA, § 1-224.

We must presume that the parties to the Washington divorce suit were residents of that state. The Washington statute of limitations in cases of this kind is six years. Remington’s Revised Statutes of Washington, Vol. 2, §§ 459, 460 and 510; St. Germain v. St. Germain, 22 Wash. 2d 744, 755, 157 P2d 981. The Washington courts have firmly established the rule for which the plaintiff contends. St. Germain v. St. Germain, supra. The Oregon decisions have with equal clarity established the rule that each installment which comes due under a decree for the payment of support money or alimony constitutes a separate and final judgment and that the statute of limitations begins to run as to each installment from the due date thereof. Cousineau v. Cousineau, 155 Or 184, 63 P2d 897; Stephens v. Stephens et al., 170 Or 363, 132 P2d 992; Cogswell v. Cogswell et al., 178 Or 417, 167 P2d 324.

It follows that all installments of alimony which accrued under the Washington decree more than six years before 30 September 1948 are barred by tbe statute of limitations, but that all installments which accrued within the six-year period immediately preceding 30 September 1948 (the date of the commencement of this suit) are not so barred. The trial court properly held that the plaintiff was entitled to a judgment for the 72 monthly installments which accrued during the six-year period, or a total sum of $1440. No authority is cited by the defendant which casts any doubt upon the correctness of this rule.

This disposes of the only contention presented in the defendant’s brief. However, in the determination of the amount of interest on the accrued installments, the court committed error which is apparent on the face of the record. The decree states that the plaintiff is entitled to judgment for the principal sum of $1440 plus interest thereon at 6 per cent “for said seventy-two months to September 30, 1948, amounting to the sum of $542.00 * * Apparently the court treated all of the monthly installments which accrued during the six-year period as bearing interest from the date on which the oldest installment within said period became due. It is obvious that no installment of principal could begin to bear interest until it had become a matured final judgment. Instead of awarding judgment for interest on $1440 for six years, the trial court should have computed interest on each separate installment from its maturity date to the date of filing of the original complaint. The time of this court is not to be taken up by making mathematical computations of interest on 72 monthly installments, each of which bears interest for a different period. The plaintiff has requested this court to assess against the defendant damages in the amount of 10 per cent under the provisions of OCLA, § 10-814. The provisions of that section imposing a penalty on the affirmance of a frivolous appeal are not applicable because the decree of the lower court in its present form cannot be affirmed.

Austin Bunn, of Baker, for petition. Ryan & Relay, of Portland, contra.

The cause is remanded to the circuit court for a recomputation of the sums due hereunder in conformity with this opinion. Neither party will recover costs.