Cole v. Addison
| Decision Date | 23 June 1936 |
| Parties | COLE v. ADDISON. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; George S. Shepherd Judge.
Action by Juliet A. Cole, by Ben Anderson, her guardian ad litem against William Addison. Judgment for plaintiff, and defendant appeals.
Reversed and remanded, with directions.
Guy L Wallace, of Portland (Roscoe P. Hurst, of Portland, on the brief), for appellant.
Ben Anderson, of Portland, for respondent.
In April, 1920, the plaintiff, who has since remarried, obtained a decree of divorce from the defendant in the circuit court for Clackamas county and was awarded the custody of their daughter, June Addison, who was then nearly eight years of age. By its terms, the decree provided that the defendant should have the right at all reasonable times to see and visit with the child. The decree, however, contained no provision settling their property rights, nor did it fix any amount that the defendant should pay for the support and maintenance of the child.
In order to settle those matters, the plaintiff and defendant entered into a contract on November 22, 1920, wherein it was agreed, among other things, that the defendant would pay to the plaintiff "for the use and benefit of June Addison, the minor child above mentioned, the sum of Forty ($40) Dollars per month for the support, education, maintenance and care of the said minor child, June Addison, the first payment to be made on or before the 10th day of December, 1920, and a like payment of Forty ($40) Dollars on or before the tenth day of each succeeding month thereafter during the minority of said child or so long as said child shall remain a dependent."
At the time this contract was entered into and prior thereto, the parties were residents of the state of Oregon. In 1921, however, the plaintiff decided to become a permanent resident of the city of New York and to take the child with her and thereupon it was mutually agreed that the contract of November 22, 1920, should be so modified that the plaintiff and the defendant should have the custody of the child every alternate year and that the defendant should pay the expenses of bringing the child back to Oregon and returning her to her mother in New York, and that during the time the child was in the custody of the defendant, he should not be required to make any payments to the mother for the use and benefit of the child.
Pursuant to said contract, as so modified, the plaintiff took the child to New York City during the spring or summer of 1921, and thereafter, in violation of the terms of the agreement, kept the child there and has ever since refused to permit the defendant to have the custody of the child and on September 20, 1924, she stated her refusal to comply with the contract by writing to the defendant as follows: "I hereby notify you that you cannot and shall not for any time long or short take June away from me."
Notwithstanding plaintiff's said refusal to perform the contract, defendant paid all said monthly installments up to and including July, 1923. Prior thereto, he also paid certain other necessary expenses of the child amounting to $550 and had in all respects complied with the terms of said contract. After July, 1923, and because of plaintiff's refusal to perform the contract, the defendant made no payments to the plaintiff for the use and benefit of the child, although he did from time to time furnish the child with clothing, supplies, and other necessities at considerable cost and expense to himself. Upon being notified by plaintiff in writing on September 20, 1924, that she would not permit the defendant to have the custody of the child, as she had previously agreed to do, the defendant moved to modify the original divorce decree so as to permit him to have the custody of the child in accordance with the terms of the contract, and obtained from the circuit court for Clackamas county an order granting him such custody in accordance with the terms of the contract, but, upon an appeal being taken by the plaintiff to this court, that order was reversed (see Addison v. Addison, 117 Or. 80, 242 P. 832), on the ground that the welfare of the child was the primary consideration to which the contract rights of the defendant must yield, but no order was made or entered in said proceedings requiring the defendant to pay any sum or amount to the plaintiff for the use and benefit of the child, and, hence, it follows that plaintiff's right to recover in this action is based wholly upon the contract of November 22, 1920, as subsequently modified by mutual consent, and not upon any order or decree of the court.
On July 29, 1930, June Addison reached the age of eighteen years and had graduated from high school the preceding month. The defendant then went to New York and brought his daughter back to Oregon and has ever since provided for her and paid all her expenses, including the expense of a college education.
On December 4, 1934, the plaintiff commenced this action, seeking to recover, under the contract, the aggregate of all said monthly installments with interest upon each thereof from August 10, 1923, to July 10, 1930, and demanded judgment for the sum of $4,960 with interest on each installment to the commencement of the action The cause was put at issue and tried before the court without a jury and the court made findings of fact substantially in accordance with what has been recited above, and, based thereon, entered judgment in favor of the plaintiff for the sum of $890. In computing the amount of the judgment, the trial court included in the judgment all the monthly installments that plaintiff would have been entitled to receive had she complied with her contract and deducted therefrom the $550 above referred to, and, from this judgment, the defendant has appealed.
Obviously under the facts above stated, the plaintiff was not entitled to recover any sum of money from the defendant. As stated, she bases her right wholly upon the contract and not upon...
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...determining such question adversely to him. See, in this connection, Cole v. Addison, 153 Or. 688, 58 P.2d 1013, 105 A.L.R. 897, annotation, p. 901. Under the preceeding rulings, the father did not violate any obligation imposed either by the agreement or the decree in failing to carry or s......
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King v. King, 15961.
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