Henderson v. Henderson

• Citation: 37 Or. 141,60 P. 597
• Parties: HENDERSON v. HENDERSON.
• Decision Date: 26 March 1900
• Court: Supreme Court of Oregon

60 P. 597

37 Or. 141

HENDERSON v. HENDERSON.

Supreme Court of Oregon

March 26, 1900

Appeal from circuit court, Multnomah county; J.B. Cleland, Judge.

Action by Ellen Henderson against M.W. Henderson. Decree for plaintiff. From an order dismissing defendant's petition to modify a divorce decree, defendant appeals. Affirmed.

On February 4, 1894, the plaintiff was granted a divorce from the defendant, and in the decree therefor the defendant among other things, was required to support and educate the minor child of the parties during his minority, and to pay to plaintiff during the term of her natural life the sum of $150 per month. On January 6, 1897, defendant petitioned the court in which such decree was rendered to modify the same so that he should be required to pay the plaintiff only $75 per month, alleging as reasons therefor that his business and property, and the income therefrom, had so decreased that he was no longer able to meet and pay the sum decreed, or any greater amount than $75 per month; that the plaintiff did not require, nor did she expend, more than that sum for her support, but had spent the remainder for purposes not beneficial to her. The plaintiff answered that defendant ought to be estopped from setting up that she did not require more than $75 per month of the sum decreed, or that, by reason of adverse fortune, he is now unable to pay more, or to allege any matter whatsoever as a reason for a modification of the decree in the respect prayed for, for the reason that plaintiff and defendant, on or about January 15 1894, made and entered into a postnuptial agreement settling and adjusting as between themselves their property rights under and by the terms of which, among other things, the defendant, for himself, his heirs, executors, and administrators, in consideration of plaintiff's covenants, did covenant and agree to pay through the First National Bank, of Portland, Or., to the plaintiff, or order the sum of $150 on the 15th day of each month thereafter during the term of her natural life; that, as security for the payment of the same for the term of 10 years from said date, the defendant agreed to join with the plaintiff in deeding block 22, in McMillen's addition to the city of East Portland, Or., to one Byron Z. Holmes, to be held by him in trust as security for the payment of said allowance for the term aforesaid; and it was further agreed that, in case the defendant should desire to sell or dispose of said property, then said Holmes was to furnish plaintiff good and sufficient surety for the payment of said allowance for the balance of said term, or invest the proceeds of the sale in a manner satisfactory to the attorneys for plaintiff and himself, and thereafter to hold said new investment as security for the payment of said allowance; that it was mutually agreed between the parties to said agreement that said property was not to be sold or disposed of for less than the amount required to pay the stipulated allowance until the expiration of the 10 years; that the plaintiff, in consideration of said covenants and agreements, relinquished all her right and interest in and to the property of defendant, both real and personal, of every name, nature, and description whatsoever, and it was therein specially agreed that the defendant would properly clothe, maintain, and educate the said minor child of said parties; that said agreement was signed and delivered by the parties thereto, and thereupon, and contemporaneously with the execution thereof, the plaintiff and defendant did duly make, execute, and deliver a warranty deed for said block to the said Byron Z. Holmes, who accepted said trust, and thereupon, as a part of the same transaction, Holmes entered into separate contracts with plaintiff and defendant, wherein he agreed to carry out and fulfill all of the covenants and terms of said agreement between plaintiff and defendant, and fully to carry out the trust imposed upon him; that at the time the first agreement referred to was made and entered into between plaintiff and defendant they were husband and wife; that said agreement was made for a valuable consideration, in order to adjust and settle the property rights between them, and to provide for the support and maintenance of plaintiff and the support and education of the minor child; that the terms of said agreement and the provisions for support therein contained were reasonable and just; that the agreement is in full force and effect, and all the terms and conditions thereof have been fully complied with by plaintiff; that the deed to Holmes was made in pursuance of said agreement, as well as with declarations of trust respecting the property; that thereafter the court rendered the said decree of February 4, 1894; and that the amount of alimony agreed upon between them in the adjustment of their property rights was embodied therein, and that the defendant has complied with the terms of said agreement up to the 15th day of September, 1897, but since then has wholly disregarded them. A demurrer interposed to this defense being overruled, a reply was filed, denying the estoppel only, and further alleging that the tendency of said agreement between the plaintiff and defendant was to interest the defendant in foregoing resistance to the suit of plaintiff against the defendant then pending for a dissolution of the bonds of matrimony between them, and that said agreement is contrary to public policy, and void. Thereupon a motion was filed by plaintiff for a decree upon the pleadings, which being allowed and the petition dismissed, the defendant appeals.

W.L. Boise, for appellant.

Geo. E. Chamberlain and C.J. Schnabel, for respondent.

WOLVERTON, C.J. (after stating the facts).

We are now to determine whether the facts set up by the answer to the defendant's petition constitute a defense to a modification of the decree in so far as it provides for the maintenance of the divorced wife. The facts relied upon are set forth by way of estoppel to the defendant insisting upon the modification, it being urged that a valid and binding agreement based upon a sufficient consideration was entered into by and between the parties, and that, the decree having been given and rendered in pursuance thereof, neither party can now be heard, without the consent of the other, to deny its validity or binding force and effect. It is suggested but not urged with great confidence, that a decree of divorce, whereby provision is made for the maintenance of one party by the other, is final; that all matters determined thereby have become res adjudicata, and cannot subsequently be questioned or modified. Such decrees are generally regarded as final, unless reservation has been made in the decree for further adjudication and determination, or the statute has made appropriate provision for such further action. No reservation was made by the decree itself in the case at bar, but the statute has made provision to the effect that, whenever a marriage shall be declared void or dissolved, the court shall have power to further decree among other things, for the recovery of and from the party in fault such an amount of money in gross or in installments as may be just and proper for such party to contribute to the maintenance of the other, and for the appointment of one or more trustees to manage in such manner as the court shall direct any sum of money decreed for the maintenance of the wife, and that at any time after a decree is given the court or judge thereof, upon the motion of the other party, shall have power to set aside, alter, or modify so much thereof as may provide for the appointment of trustees for the care and custody of the minor children, or their nurture and education, or the maintenance of either party to the suit. Hill's Ann.Laws Or. § 501, subds. 3, 5; Id. § 502. Mr. Justice Moore, speaking of section 502 (in Corder v. Speake [Or.] 51 P. 647), says: "The statute authorizes the court, upon motion, to set aside, alter, or modify so much of a decree of divorce as relates to the maintenance of either party to the suit." This language is explicit, and is a rational and just interpretation of the statute; and, were it not for the contention of counsel that the question was not involved in that case, we should make no further comment. True, the provisions of the section are somewhat vague, but, when read in pari materia, as it should be, with the preceding section, it is manifest that the legislative intendment was to authorize a modification in that particular. Subdivision 1 of section 501, supra, provides for the care and custody of the minor children; subdivision 2 for the recovery of the party in fault, and not allowed...