Bogh v. Bogh
| Decision Date | 01 February 1949 |
| Citation | 185 Or. 93,202 P.2d 503 |
| Parties | BOGH <I>v.</I> BOGH |
| Court | Oregon Supreme Court |
2. Unless control over a judgment was reserved by judicial action or statutory provision or unless judgment fails to state faithfully the relief actually given it becomes final at the close of the term of court and court no longer has power to modify or revise it. O.C.L.A. §§ 1-1007, 9-915.
Divorce — Order — After expiration of term
3. Where court did not reserve control over divorce decree which awarded possession of home to plaintiff as long as she remained in home and maintained a home for youngest child, an order, made after expiration of term at which decree was rendered, modifying decree by addition of provision that plaintiff and defendant each owned an undivided one-half interest in the realty was void. O.C.L.A. §§ 93-211, 93-252.
Appeal and error — Void order — Final and appealable
4. Void order modifying divorce decree so as to declare that plaintiff and defendant were owners of certain realty and awarding each an undivided one-half interest therein was final and appealable.
See 27 C.J.S., Divorce, § 300
126 A.L.R. 967
31 Am. Jur. 272
Appeal from Circuit Court, Multnomah County.
Randall S. Jones, of Portland, argued the cause for appellant. On the brief were Jacob, Jones & Brown, and Eugene H. Dowling, of Portland.
Howard P. Arnest, of Portland, argued the cause and filed a brief for respondent.
Before ROSSMAN,* Chief Justice, and LUSK,** BELT, KELLY, BAILEY and HAY, Justices.
This is a consolidation of two appeals taken by the defendant from two orders made by the Circuit Court for Multnomah County which affect a decree of divorce entered by that court December 14, 1944, approximately two and one-half years before the making of the challenged orders. Prior to the entry of the divorce decree the appellant was the husband of the respondent. The plaintiff (wife) in the divorce suit is the respondent in this appeal. The first of the challenged orders was entered July 30, 1947, the second, October 24, 1947.
The divorce decree, in addition to dissolving the bonds of matrimony, contained these provisions:
A part of the decree, of which we omitted mention, was modified January 11, 1946. That modification is immaterial to the issues before us and will receive no consideration.
July 30, 1947, by one of the two orders challenged by this appeal, the court modified the decree in a particular which the respondent deems material. The modifying order provided:
That property was the home of the parties. The lots were improved with a dwelling house. We shall refer to it as the home.
The second order attacked by this appeal was entered October 24, 1947. Its material part follows:
"It is ordered that defendant's motion to vacate a portion of the order made herein on the 28th day of July, 1947, and entered herein on the 30th day of July, 1947, be and the same is hereby overruled; * * *."
It is seen that the second order (October 24, 1947) did not modify the decree. It refused to strike from the decree the paragraph that was added by the order of July 30, 1947. The two orders are controlled by the same principle of law.
The issue before us is precipitated by the following proposition which the appellant's counsel present in their brief:
"After the expiration of a term of the Circuit Court in which a decree was entered, the Circuit Court is without power or jurisdiction to make a substantial change in or addition to such decree."
Retracing for a moment our steps, it will be seen that the decree of divorce was entered December 14, 1944, and that the order of modification was not made until July 30, 1947. Although the divorce decree made no adjudication of the ownership of the home, the attacked modifying order (July 30, 1947) decreed that the respondent owned an undivided one-half interest in the property. It held that the appellant owned the remaining half. The decree and the orders were entered by the Circuit Court for Multnomah County, which comprises the fourth judicial district: § 93-211, O.C.L.A. Section 93-252, O.C.L.A., provides:
"The terms of the circuit court in the fourth judicial district shall be held annually as follows in the county of Multnomah: On the first Monday in January, the first Monday in February, the first Monday in March, the first Monday in April, the first Monday in May, the first Monday in June, the first Monday in September, the first Monday in October, the first Monday in November, and the first Monday in December."
It will be observed that more than a score of court terms intervened between the entry of the decree and the making of the modification order.
Before undertaking to analyze the merits of the appellant's contention, we shall recount further the procedure that was employed and take note of some facts that were developed.
The complaint was filed July 19, 1940. It alleged:
It seems evident that the couple had no interest in any other real property.
The prayer petitioned for a decree, not only terminating the marriage and awarding the custody of the children, but also "for such other and further relief as to this court may seem just and equitable, including the adjudication of property rights between the parties."
July 13, 1943, the respondent filed a supplemental complaint. From it we quote:
The prayer asked:
The answer and cross complaint contained the following:
Apparently in the three years which passed between the filing of the original complaint and the submission of the supplemental one, payment of the contract price was completed and the vendor executed a deed to the property.
After the pleadings had been exchanged in the divorce suit a trial was held December 11, 1944. The transcript of evidence is before us. It states:
"After a conference in chambers between the Court and respective counsel, the following proceedings were had and done in open court, as follows, to-wit: * * *."
At that point is transcribed the testimony given by the respondent, she being the only witness who testified. What occurred in the conference is not disclosed by the transcript. The respondent gave no testimony whatever concerning the real property, and, apart from answering in the affirmative a question that asked whether she could support Jacqueline "if you are allowed to live in the home," she left unmentioned the real property. She confined her testimony to her charges of cruelty and to suggestions concerning the custody of the children. At the close of her testimony the trial judge stated:
Thereupon the following occurred:
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