Beard v. Beard
| Decision Date | 28 November 1962 |
| Citation | 376 P.2d 404,232 Or. 552 |
| Parties | Pearl L. BEARD, Appellant, v. Alfred J. BEARD, Respondent and Cross-Appellant. |
| Court | Oregon Supreme Court |
Harold A. Fabre, Pendleton, argued the cause for appellant. On the briefs were Fabre & Collins, Pendleton.
Ralph Currin, Pendleton, argued the cause for respondent and cross-appellant. On the brief were Currin & French, Pendleton.
Before McALLISTER, C. J., and SLOAN, O'CONNELL, GOODWIN, LUSK and DENECKE, JJ.
This is an appeal and a cross appeal from a divorce decree. The wife obtained a divorce, custody of two children, support money, the alimony prayed for in her complaint, and a substantial quantity of property. She appeals because she wants additional property and child support.
The husband cross appeals, contending that the award of any property to the wife was error because there was no pleading foundation for such an award.
With reference to the wife's contentions, we have examined the record and have concluded that her appeal is without merit. It is perhaps true that the trial court awarded her slightly less property than might have been justified if property had been the only consideration before the court. However, the court also awarded the wife $400 per month as permanent alimony, and $200 per month as child support. The allocation of periodic payments to the wife is in keeping with her needs and with the husband's ability to pay.
The trial court was aware of the relationship between the earning capacity of the husband and his management of the business properties that produced his income. If the wife's demand for a greater share of the property were satisfied, it would be doubtful whether the husband would be able to make the periodic payments required under the decree. The trial judge took all relevant factors into account in arriving at a just distribution of property and a just award of periodic payments. We have found no reason to overturn the decree on the wife's representation that she ought to have a greater share in the property.
Turning to the cross appeal, it appears that the wife's complaint failed to describe any property. There was a vague allegation that the parties had acquired certain property and that their rights therein ought to be determined. The suit came on for trial on January 5, 1962, and after the taking of testimony the matter was continued until January 17, 1962.
On January 17, the wife filed an amended complaint describing in detail for the first time the property in which she claimed an interest. No additional testimony was taken on that day, but counsel apparently argued the case at some length. The arguments are unreported. The amended pleading apparently was tendered to conform to the proof that previously had been placed in the record over the husband's objection that it was without a foundation in the pleadings. The husband now says that it was error to receive the amended pleading because one may not amend a pleading to conform to proof that was inadmissible when it was received. We shall assume, without deciding, that his assertion contains a correct statement of a general rule. See Smith v. Jacobsen, 224 Or. 627, 632, 356 P.2d 421 (1960). As will be seen, there is no reason in this case to disturb the rule.
Under ORS 16.390 a party may amend his pleadings to conform to the proof. The cases hold that such proof must be properly in the record. See Smith v. Jacobsen, supra, and Tracy and Baker v. City of Astoria, 193 Or. 118, 129, 237 P.2d 954 (1951). The language usually quoted from the cases is that the 'evidence upon which to base [the amendment] must have been received without objection.' Wood v. Southern Pacific Co., 216 Or. 61, 72, 337 P.2d 779, 784 (1959). Evidence of the property owned by the parties in the case at bar was objected to, but the evidence was received despite the objection. The question thus resolves itself into a question whether the objection was properly overruled. If it was, then there was no abuse of discretion in permitting an amendment to conform to the proof. In other words, if the original pleading afforded adequate notice to the defendant so that we can say that the property rights of the parties were in issue, then the proof was relevant to an issue and was properly received.
The original complaint was, no doubt, somewhat perfunctory. It did, however, put the defendant on notice that the wife was seeking a division of the property owned by the parties. The parties were not strangers. Both had participated in the husband's...
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