Cogswell v. Cogswell et al.

Decision Date13 February 1946
Citation167 P.2d 324,178 Or. 417
PartiesCOGSWELL <I>v.</I> COGSWELL ET AL.
CourtOregon Supreme Court
                  See 17 Am. Jur. 504, 576
                  27 C.J.S., Divorce, § 328
                  Claim for unpaid alimony — when barred, note, 137 A.L.R. 884
                

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Suit to establish an interlocutory judgment and decree and the final judgment and decree of divorce made and rendered by the Superior Court of the State of California in and for the County of Alameda, as a final decree and judgment of the California court and of the Circuit Court of Oregon for Multnomah County, and to impress by injunction the monetary obligations of such decree on funds coming to defendant Charles A. Cogswell from the estate of his mother, Martha Cogswell, deceased, and upon said Charles A. Cogswell's interest in the real property, the legal title to which was transferred in her lifetime by said Martha Cogswell, deceased, to defendant United States National Bank and is now held by said bank subject to an agreement of trust containing, among other things, a restrictive provision against recovery therefrom by creditors of or other claimants against the beneficiaries named therein; the funds of said decedent's estate being now in the hands of defendant Mark M. Matthiessen, executor of her last will and testament and estate. From a decree in favor of plaintiff, defendants appeal.

MODIFIED. REHEARING DENIED.

Robert R. Rankin, of Portland, for Charles Amos Cogswell, appellant.

M.M. Matthiessen, of Portland (Wood, Matthiessen & Wood, of Portland, on the brief), for United States National Bank of Portland and M.M. Matthiessen, executor, appellants.

James L. Conley, of Portland (with Brown & Hnueke, of Spokane, Washington, on the brief), for respondent.

KELLY, J.

Constance Moore Cogswell, plaintiff and respondent, and Charles Amos Cogswell, defendant and appellant, were married on August 12, 1916, at Spokane, Washington. They separated about May 12, 1924, and on May 17, 1924, Constance Moore Cogswell filed suit, in the Superior Court of California for the County of Alameda, for divorce on the ground of mental cruelty. Charles Amos Cogswell appeared by answer stipulated to be a specific and general denial.

A hearing was had and on June 5, 1924, Judge T.W. Harris of the California court signed an interlocutory decree (Plffs. Ex. 1; Defts. Ex. B) as follows:

"Wherefore, it is hereby ordered, adjudged and decreed, by this Interlocutory Judgment and Decree that a divorce ought to be granted to said plaintiff from said defendant, and that said plaintiff is entitled to a divorce from said defendant on the ground of defendant's extreme cruelty toward this plaintiff.

In accordance with the stipulation of the parties hereto made this day in open Court,

It is further ordered, adjudged and decreed, that until such time as the above named plaintiff shall marry, above named defendant shall pay plaintiff as and for alimony fifty dollars per month;

And it is further ordered, adjudged and decreed, that until the further order of the court the defendant shall pay to plaintiff the sum of twenty-five dollars per month for the support, maintenance and education of said minor child, Helen Charlotte Cogswell;

And it is further ordered, adjudged and decreed, that said plaintiff is awarded the care, custody and control of said Helen Charlotte Cogswell said minor child hereinabove named.

And it is further ordered, adjudged and decreed that defendant pay to plaintiff the sum of one hundred dollars for and as attorney fees in full in the above entitled matter, and the actual costs expended by plaintiff in this action."

On June 10, 1925, upon motion of defendant Cogswell a decree of divorce was rendered by said Superior Court of California for the County of Alameda, which, omitting the title, is as follows:

"Final Judgment of Divorce.

The motion of the Defendant in the above entitled action, for final judgment therein, has come on regularly for hearing this day, and it appears to the Court that an interlocutory judgment of divorce in favor of the above named Plaintiff and against the above named Defendant was entered in the said cause on the 5th day of June, 1924, in Judgment Book 152 of the said Court, at page 1, and that no appeal has been taken from the said interlocutory judgment nor motion for a new trial made.

Therefore, it is hereby ordered, adjudged and decreed that the said Constance Moore Cogswell be and is hereby granted a divorce from the said Charles A. Cogswell on the ground of (defendant's) extreme cruelty and that the marriage between the said plaintiff and the said defendant be and the same is hereby dissolved and each of the said parties is restored to the status of a single person.

Done in open Court this 10th day of June 1925.

                              (Signed) Joseph S. Koford
                                  Judge of the Superior Court of the
                                  State of California in and for the
                                  County of Alameda."
                

Defendant Cogswell made payments provided for in said interlocutory judgment up to December 12, 1924, and has made no payment since that time. Plaintiff has not remarried since said interlocutory judgment was rendered; and, by this suit, she seeks to establish a judgment in the state of Oregon in accordance with the terms and provisions of the foregoing interlocutory judgment of the California court with respect to payments of money by defendant to plaintiff.

Helen Charlotte Cogswell, the daughter of plaintiff and defendant Cogswell referred to in said above quoted interlocutory judgment, was born on February 27, 1920, and attained her majority on February 27, 1941, not having theretofore married.

Defendant, Charles Amos Cogswell, is the son of Mrs. Martha Cogswell, who died on April 26, 1942, being a resident and inhabitant at the time of her death of and within Multnomah County, Oregon.

On November 3, 1939, Mrs. Martha Cogswell executed a deed conveying to defendant The United States National Bank of Portland, Oregon, title to the following described real property situate in the city of Portland, Multnomah County, Oregon, to-wit:

Parcel 1: All of Lots seven (7) and eight (8) in Block Eighty-two ...

To continue reading

Request your trial
16 cases
  • Catlett v. Catlett, 40887
    • United States
    • Oklahoma Supreme Court
    • March 22, 1966
    ... ...         In Cogswell v. Cogswell, 178 Or. 417, 167 P.2d 324, the Oregon Court said: ... 'The unpaid matured installments of alimony awarded by California court in ... ...
  • White v. Bacardi
    • United States
    • Florida District Court of Appeals
    • January 24, 1984
    ... ... Hamilton, 116 Ind.App. 214, 63 N.E.2d 207 (1945); In Re Sullivan's Will, 144 Neb. 36, 12 N.W.2d 148 (1943); Cogswell v. Cogswell, 178 Or. 417, 167 P.2d 324 (1946). While the Restatement claimed--in 1935--to represent the majority view, it has been criticized as ... ...
  • Safe Deposit & Trust Co. of Baltimore v. Robertson
    • United States
    • Maryland Court of Appeals
    • March 31, 1949
    ... ... To ... the same effect, see Clay v. Hamilton, 116 Ind.App ... 214, 63 N.E.2d 207; Cogswell v. Cogswell, 178 Or ... 417, 167 P.2d 324; Keller v. Keller, 284 Ill.App ... 198, 1 N.E.2d 773; In re Sullivan's Will, 144 ... Neb. 36, 12 ... ...
  • Shelley v. Shelley
    • United States
    • Oregon Supreme Court
    • July 20, 1960
    ... ...         In Cogswell v. Cogswell et al., 1946, 178 Or. 417, 167 P.2d 324, 335, we held that the spendthrift provision of a trust is not effective against the claims of ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT