Garner v. Garner
| Decision Date | 27 January 1948 |
| Citation | 189 P.2d 397,182 Or. 549 |
| Parties | GARNER <I>v.</I> GARNER, now MARY L. WILLIAMS |
| Court | Oregon Supreme Court |
3. Under the statute providing for recovery in a divorce proceeding from the party in fault of such amount of money as may be just and proper for that party to contribute to the maintenance of the other, alimony may be awarded only against the party in fault. O.C.L.A., § 9-914(3).
4. Where a judgment is entered by agreement of the parties or on confession of defendant in an action pending wherein court has jurisdiction, judgment so rendered is conclusive upon parties, and its effect is the same as it would have been if it had been rendered after a trial on the merits.
Divorce — Default decree — Res adjudicata
5. A default divorce decree against a wife in effect holding her to be "in fault" was, in absence of timely appeal, res judicata to prevent later reconsideration of wife's fault on a subsequent motion by the husband to set aside that part of the decree allowing wife alimony on the ground that the court was without jurisdiction under the statute to allow alimony to a party in fault. O.C.L.A., § 9-914(3).
6. Where a husband, voluntarily and without consideration, promised to pay alimony to his wife who was found at fault by default decree of the divorce court, and voluntary promise did not dissuade the wife from defending the action, husband was not estopped from seeking to be relieved of burdens he voluntarily assumed at a later date on the ground that he accepted benefits of his own consent decree. O.C.L.A., §§ 6-401, 9-914(3). Appeal and error — Decree — Party responsible for error — Estopped
7. Generally, a party who procures entry of a decree or is responsible for error therein is estopped to assert on appeal that it is erroneous.
Judgment — No jurisdiction — Void
8. Where a court rendering a decree acts without jurisdiction or even in excess of its jurisdiction, the decree is void either in whole or in part as the case may be.
Judgment — Consent judgment
9. A "consent judgment" is a contract of the parties, acknowledged in open court and ordered to be recorded with approval of a court of competent jurisdiction, or a solemn contract or judgment of parties put on file with sanction and permission of the court.
See Words and Phrases, Permanent Edition, for all other definitions of "Consent Judgment".
Courts — No jurisdiction — Consent agreement
10. Where the court is without jurisdiction of the subject matter involved, jurisdiction cannot be conferred by consent agreement or other conduct of the parties.
11. The acts of a court in excess of its jurisdiction are void even if it has jurisdiction of the subject matter of the action and of the parties, as where a court of special or limited jurisdiction exceeds its power.
Courts — Jurisdiction — Defined by statute
12. The jurisdiction of the circuit courts in divorce proceedings as defined by statute cannot be enlarged or diminished by any agreement of the parties.
Divorce — Award of alimony to party at fault — Void
13. Under statute authorizing court, when declaring dissolution of a marriage, to provide for recovery from party in fault of such money as may be just and proper to contribute to maintenance of the other, court was without jurisdiction to award alimony to a wife found at fault in a default divorce action though the husband expressly consented to pay, and such an award was void and subject to attack by the husband after the time for appeal had passed. O.C.L.A., § 9-914(3).
Courts — Excess of jurisdiction
14. "Excess of jurisdiction" is the state of being beyond or outside the limits of jurisdiction, and, as distinguished from entire absence of jurisdiction, means that the act, although within the general power of the judge, is not authorized, and therefore void, with respect to the particular case, because the conditions which alone authorize the exercise of his general power in that particular case are wanting, and hence the judicial power is not in fact lawfully invoked.
See Words and Phrases, Permanent Edition, for all other definitions of "Excess of Jurisdiction".
See note, 82 A.L.R. 539
17 Am. Jur. 478
27 C.J.S., Divorce, § 174
Appeal from Circuit Court, Multnomah County.
Wesley A. Franklin, of Portland, argued the cause for appellant. On the brief were Lord, Anderson & Franklin, of Portland.
William C. Palmer, of Portland, argued the cause for respondent. With him on the brief was A.F. Knight, of Portland.
Before ROSSMAN, Chief Justice, and KELLY, BAILEY, HAY and WINSLOW, Justices.
Suit by Joseph Garner against Mary L. Garner, now Mary L. Williams, for divorce. On plaintiff's motion to amend the decree by deleting that portion providing for payment of permanent alimony. From an order upholding plaintiff's liability, plaintiff appeals.
REVERSED AND REMANDED.
Joseph Garner, plaintiff, and Mary L. Garner (now Mary L. Williams) defendant in this case, were formerly husband and wife. In 1939, Joseph brought suit for divorce against Mary in Multnomah County. Mary was personally served with summons, but made no appearance, and a default decree was entered in favor of Joseph on September 14, 1939. During the pendency of the suit, Joseph conveyed to Mary his interest in their home in Portland. Despite Mary's default, the decree awarded her permanent alimony, using the following language:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff as he has voluntarily agreed to do, pay the defendant towards her support and maintenance the sum of twenty and no/100 ($20.00) dollars monthly through the clerk of this Court each and every month so long as the plaintiff is regularly employed."
From time to time writs of execution have issued upon the decree, and the sheriff of Multnomah County, by virtue of such writs, has, by garnishment upon Joseph's employers, levied and collected sums aggregating $127.29. On October 21, 1940, Mary married Elzie B. Williams. On May 31, 1946, a further execution issued upon the decree. On October 8, 1946, Joseph moved the court to amend the decree by deleting that portion providing for the payment of permanent alimony, or, in the alternative, by relieving him from payment of such alimony accruing subsequent to the date of Mary's marriage to Williams. The motion was supported by Joseph's affidavit, in which, among other matters, he alleged that he had resided with his wife for a period of twenty-eight years prior to entry of the decree of divorce, and, for that reason, he had desired to make some provision for her; that he was then unemployed and for some time had been on public relief; that consequently he conveyed to her the property constituting their home, with the furniture; that the reasonable value of the dwelling-house was upwards of $2,500, and, of the furnishings, more than $500; that at the time such property was conveyed to Mary, it was understood that she should make no claim for alimony; that, without his knowledge, a provision was made in the decree that he should pay her $20 per month, which he had never intended to do; and that, on October 21, 1940, Mary married Williams and was then living with and being supported by him. He alleged further that, on October 21, 1939, which was about five weeks subsequent to the entry of the divorce decree, Mary wrote him as follows:
In opposition to the motion, Mary filed affidavits by herself and by Mr. William Charack, who was Joseph's attorney in the divorce suit. Mr. Charack's affidavit stated that, to the best of his recollection, knowledge and belief, he discussed with Joseph, before the decree of divorce was obtained, the matter of his agreeing to pay Mary $20 per month. Mary's affidavit contradicted Joseph's as to the value of his interest in the real property, which interest he conveyed to her, alleging that such value was only about $165; stated that, at the time of the divorce, she was in ill health and had recently undergone a major surgical operation as a charity patient in the Multnomah County Hospital; that, while the divorce suit was pending, she had several conversations with plaintiff's attorney, and was informed by him that plaintiff felt that she was entitled to something by way of alimony and had instructed the attorney to take the necessary steps to have the decree include an award of $20 a month; that she, at that time, had no funds with which to employ an attorney; and that Joseph was and had been working on the WPA and receiving $85 per month in wages. She does not deny having written the letter set forth above, but states simply: "I do not have in mind writing the note which is mentioned in his Affidavit."
The transcript of the testimony which was taken at the hearing in the divorce suit includes the following, which is a portion of Joseph's testimony:
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