Dean v. Dean

• Decision Date: 30 June 1931
• Citation: 300 P. 1027,136 Or. 694
• Parties: DEAN v. DEAN. STATE EX REL. DEAN v. DEAN.
• Court: Oregon Supreme Court

300 P. 1027

136 Or. 694

DEAN v. DEAN. STATE EX REL. DEAN v. DEAN.

Supreme Court of Oregon

June 30, 1931

Department 1.

Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.

Divorce suit by Letah B. Dean against C.J. Dean, and proceeding by the State of Oregon, on the relation of Letah B. Dean against C.J. Dean. From an order overruling a motion to vacate part of the decree in the divorce suit, defendant appeals, and from an order entered upon a conviction of contempt, defendant appeals.

Affirmed.

S. J. Bischoff, of Portland, for appellant.

Elton Watkins, of Portland (Johnston Wilson, of Portland, on the brief), for respondents.

RAND J.

On December 20, 1926, a complaint for divorce, charging the defendant herein with cruel and inhuman treatment, was filed by plaintiff herein in the circuit court for Multnomah county, and personal service of the summons and complaint was made on defendant. Thereafter, and on the same day, both plaintiff and defendant appeared personally and by counsel and defendant, through his attorneys, stated in open court that he did not desire to plead to the complaint or to appear further in the suit, after which he was adjudged to be in default, but the order adjudging him to be in default was not entered until the following day, when it was ordered nunc pro tunc as of the day preceding. While the parties were so present in open court, plaintiff offered evidence in support of the allegations of the complaint, and a decree was entered granting an absolute divorce to plaintiff, and settling the property rights of the parties in accordance with an agreement previously entered into between them. The decree set forth that the cause came on for trial; that defendant appeared by his attorneys Coan and Rosenberg; that it appeared to the court that the parties to the suit had entered into a valid contract for the settlement of their property rights; that it was agreed that defendant would convey to plaintiff free from all incumbrances a certain dwelling house and lot in the city of Portland and that he would pay her, as alimony for the support of herself and an unborn child, $200 per month so long as she remained single; that, in case of her remarriage, if the child was then alive, he would pay plaintiff such sum as would be reasonably necessary for the support, nurture, and education of the child; and that, in consideration thereof, plaintiff would release her dower and claim of dower to all defendant's other real property. After setting forth the terms of said contract as above, and decreeing that each party should perform the terms thereof, the decree contained the following provision: "It is further ordered, adjudged and decreed that the above named defendant pay to this plaintiff the sum of $200.00 in cash on the signing of this decree as temporary alimony and support money and the further sum of $200.00 in cash upon the 15th day of January, 1927, and a like sum of money each and every month thereafter, provided, however, that in the event the plaintiff should remarry then and in that event all future payments of alimony, support money or maintenance directed to be paid under this decree by the defendant to the plaintiff shall immediately cease and determine." The nunc pro tunc order referred to, among other things, states: "That on the 20th day of December, 1926, after the service of summons and complaint upon the above named defendant the defendant appeared in person and by and through his attorney, Mr. Ralph Coan and refused to plead to said complaint or otherwise appear in said cause, and was in all things in default therein."

After making the monthly payments awarded to plaintiff and acquiescing in the decree for more than four years, defendant stopped paying plaintiff and on March 10, 1930, filed in said circuit court a motion to set aside and vacate all said decree, except that part thereof granting a divorce to plaintiff and, upon the overruling of the motion, appealed therefrom. Plaintiff also, because of defendant's failure and refusal to continue to make further monthly payments, commenced proceedings in said court to have the defendant brought into court under process of contempt and, after a hearing thereon, defendant was convicted of contempt, and an order was entered directing him to pay said moneys into court or be imprisoned until compliance with the order. From this order, defendant has also appealed. Both of said appeals were argued and submitted together, and both of said matters will be so decided in this opinion.

Defendant's motion to vacate parts of the decree will first be considered. Defendant's contention is that, since there was no pleading filed in the divorce suit, except the complaint itself, and that since the complaint made no mention of any contract settling the property rights of the parties, and contained only a special prayer for divorce and a general prayer for such other and further relief as the court should deem just and equitable in the premises, the court had no authority to incorporate into the decree the terms of the contract, or to require the defendant to comply with such terms and, hence, that that part of the decree objected to is a mere nullity.

It is a well-settled principle of law that a decree or judgment on a matter outside the issue raised by the pleadings is a nullity, and is nowhere entitled to the least respect as a judicial sentence. Jones v. Davenport, 45 N. J. Eq. 77, 17 A. 570, and authorities there cited. This...