Anderson v. Anderson

• Jurisdiction: Oregon
• Parties: Alberta M. ANDERSON, Appellant, v. Dellas J. ANDERSON, Respondent.
• Citation: Anderson v. Anderson, 374 P.2d 479, 232 Or. 160 (Or. 1962)
• Court: Oregon Supreme Court
• Decision Date: 19 September 1962

Page 479

374 P.2d 479

232 Or. 160

Alberta M. ANDERSON, Appellant, v. Dellas J. ANDERSON, Respondent.

Supreme Court of Oregon, In Banc.

Sept. 19, 1962.

Robert M. Mulvey, Oregon City, for the motion.

Ryan & Ryan, Portland, contra.

PERRY, Justice.

The plaintiff has appealed from a decree of the circuit court denying her prayer for a decree of divorce and other relief, and dismissing her complaint. The defendant has moved to dismiss the appeal.

The decree of the trial court, entered in this suit, provides, as follows:

'IT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED, That all orders entered herein pendente lite, including but not limited to the order prohibiting withdrawals from the bank account belonging to the parties and located in the Portland Federal Savings Bank, Milwaukie Branch, Milwaukie, Oregon, be, and the same hereby are dissolved and helf (sic) for naught, and

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED, That defendant pay to plaintiff through the Clerk of this Court as and for additional Attorney's fees herein the sum of $450.00.'

The basis of the defendant's motion lies in the fact that the decree entered by the court provided for the sum of $450 as attorney's fees which was paid by the defendant to the county clerk, pursuant to the decree; that the plaintiff withdrew this amount of money and entered her satisfaction for that sum in the office of the county clerk. It is therefore contended by the defendant that the plaintiff, having availed herself of the benefits of a portion of the decree, cannot now challenge those portions of the decree which are unfavorable to her. Isenhart v. Isenhart, 207 Or. 365, 296 P.2d 927; Sherman v. Sherman, 89 Or. 130, 173 P. 572; Portland v. Schmid, 82 Or. 465, 161 P. 560.

It is the contention of the plaintiff that, although she has accepted the $450 to pay her attorney, she may still maintain her appeal in this court, for the reason that the application for the allowance of attorney's fees was made prior to the entry of the decree, and constituted only compliance with an order pendente lite, a sum to which she was entitled under any circumstances and which would not be subject to review by this court.

Prior to the enactment of Chapter 553, Oregon Laws 1953, the only authority for a trial court to award any sum to enable a wife to prosecute or defend a suit for divorce was to be found in the provisions of the law as now set forth in ORS 107.090, which reads as follows:

'* * * (a) That the husband pay to the clerk of the court such amount of money as may be necessary to enable the wife to prosecute or defend the suit, as the case may be, and also such amount of money as may be necessary to support and maintain the wife during the pendency of the suit.'

Under this statute this court consistently held that the order for the payment of suit money and counsel fees did not constitute a judgment which could be enforced by execution, 'but was a mere 'personal order,' and enforceable only by contempt proceedings.' State ex rel. Tolls v. Tolls, 160 Or. 317, 85 P.2d 366, 119 A.L.R. 1370. Subsequently there was enacted Chapter 553, Oregon Laws 1953, codified as ORS 107.100, containing paragraph (g), which reads as follows:

'A judgment against one party in favor of the other for any sums of money found to be then remaining unpaid upon any enforceable order or orders theretofore duly made and entered in the proceedings pursuant to any of the provisions of ORS 107.090, and for any such further sums as additional attorney fees or additional costs and expenses of suit or defense as the court finds reasonably and necessarily incurred by such party; or, in the absence of any such order or others pendente lite, a like judgment for such amount of money as the court finds was reasonably necessary to enable such party to prosecute or defend the suit, as the case may be.'

This act authorizes the inclusion in the judgment the amounts unpaid and...