Cooper v. Matheny
| Citation | 220 Or. 390,349 P.2d 812 |
| Parties | Mary A. Matheny COOPER, Respondent, v. Robert D. MATHENY, Appellant. |
| Decision Date | 24 February 1960 |
| Court | Supreme Court of Oregon |
Robin Day, Salem, for appellant. On the brief were Day & Burt, Salem.
George P. Winslow, Jr., Tillamook, for respondent. On the brief were Winslow & Winslow, Tillamook.
Before McALLISTER, C. J., and ROSSMAN, PERRY and HARRIS, JJ.
This is an appeal by the defendant, Robert D. Matheny, from an order of the circuit court, entered February 14, 1958, which denied a motion made by him to modify a decree of divorce entered by that court June 2, 1950. The decree granted the plaintiff a divorce, awarded to her the custody of the three children of the marriage and ordered the defendant to pay monthly for their support $75 'until said children become of age or self-supporting.' The ages of the children at that time were 14 years, 13 years and 6 years. The motion which resulted in the entry of the order of February 14, 1958, sought to have the decree modified retroactively so as to credit him with amounts which he claims were paid in excess of what the decree contemplated. It is the defendant's position that the two older children became self-supporting soon after the decree was rendered, that he thereafter owed no more than $25 a month for the support of the youngest child and that payments for support in excess of that amount should be credited against other payments required by the decree. The defendant apparently believes that the award of $75 monthly support for the three children was, in effect, an award of $25 per month for each child. The challenged order made by the court February 14, 1958, ruled that the defendant had not overpaid the amount exacted by the decree of June 2, 1950, but reduced the monthly support money from $75 to $35. It denied all other phases of the motion.
A decree in a suit of this character which fixes a monthly sum to be paid for the benefit of two or more children is deemed by the courts to require payment of the entire sum until the youngest child attains majority, or until the decree is otherwise prospectively modified by a court order. In re Application of Miller, 1941, 139 Neb. 242, 297 N.W. 91; Miller v. Miller, 1941, 74 App.D.C. 216, 122 F.2d 209; 2 Nelson on Divorce, Sec. 14.80, page 92. Similarly, if a divorce decree lumps alimony and support into a single amount, the wife may enforce payment of the full amount as alimony after the children reach majority. Lockwood v. Lockwood, 1947, 82 U.S.App. D.C. 105, 160 F.2d 923; Miller v. Miller, supra. It has also been declared that if alimony and support are lumped into a single amount a minor may collect the full amount after the wife's remarriage. Cunningham v. Faulkner, 1926, 163 Ga. 19, 135 S.E. 403. See annotation 124 A.L.R. 1324.
There are two reasons for the rule of indivisibility. First, a support order is not based solely upon the needs of the minor children, but takes into account what the parent can afford to pay. Miller v. Miller, supra. Consequently, where the family is in straitened financial circumstances at the time of the divorce, a support order may fix a payment inadequate to meet the needs of two or three minor children although the same amount might be justly adequate, or only slightly more than adequate, for one child. This being so, no mechanical adjustment of the support rate ought to be made as children reach majority, but any proposed modification should be addressed to the discretion of the court.
Secondly, a support payment cannot be pro-rated equally among the beneficiaries for the reason that requirements of the individual child vary widely depending upon age, sex, health and other circumstances.
'It is not always practicable to prescribe justly and exactly how much of a common income is to be spent for the mother, and how much for the children, when they all share the same home and share according to their needs in...
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