Hurner v. Hurner

• Decision Date: 02 July 1946
• Citation: 170 P.2d 720,179 Or. 349
• Parties: HURNER <I>v.</I> HURNER
• Court: Oregon Supreme Court

179 Or. 349

170 P.2d 720

HURNERv.

HURNER

Supreme Court of Oregon.

Argued May 14, 1946.

Modified July 2, 1946.

Rehearing denied September 3, 1946.

Divorce — Property settlement

1. If, in a property settlement between a husband and wife, which settlement is adopted and approved in a divorce decree, the husband agreed to pay to his wife an allowance for her maintenance as a restoration to wife of property brought by her to the marriage, or as payment to her, by way of annuity, of her share or a portion of her share of jointly accumulated property, then it is beyond court's power to modify the decree either by reducing or eliminating the maintenance allowance.

Divorce — Property settlement

2. If maintenance allowance in property settlement between husband and wife which is adopted and approved by a divorce decree, is not an integral part of a property settlement, but is simply in the nature of permanent alimony, it is subject to modification by the court on a showing of changed conditions.

Divorce — Maintenance — Modification

3. Where wife brought neither money nor property to marriage, and, though she contributed to joint accumulation she received a fair share thereof under property settlement which provided for an allowance for wife's maintenance, and which was adopted and approved in divorce decree, the maintenance allowance was not an integral part of the property division and was therefore subject to modification, though agreement recited that wife accepted settlement in satisfaction of all claims and as a separation and division of their properties.

Divorce — Alimony

4. Evidence was insufficient to show any material change of conditions as to divorced wife as would warrant elimination of portion of divorce decree awarding her $70 alimony a month though wife obtained employment paying about $130 a month and received $40 a month from renting two rooms in her home.

Divorce — Modification of decree

5. On motion by divorced husband to modify divorce decree, wife was entitled to notice, by proper pleadings, of all grounds on which husband intended to rely for modification.

Divorce — Alimony — Modification

6. Modification of provision for alimony in divorce decree should be made only after a thorough investigation by the court and an adequate showing by the party seeking modification.

Divorce — Alimony — Modification

7. Evidence was insufficient to show any material change of condition as to divorced husband that would warrant modification of alimony award to divorced wife, where husband claimed that he had been obliged to cease work because of ill health, but he was the beneficiary of a retirement fund maintained by his employer for its employees.

Divorce — Modification of decree

8. A divorce decree will not be modified with respect to custody of a child, in absence of a satisfactory showing of a material change in circumstances.

Divorce — Custody of child

9. In determining whether divorce decree will be modified with respect to custody of a child, the child's welfare is the criterion, and even if a change in conditions affecting such welfare is shown, the court must be satisfied that by the proposed change, the best interests of the child will be promoted.

Divorce — Custody of child

10. On motion by divorced husband for modification of divorce decree with respect to custody of child, on ground that divorced wife was not fit to have custody of child, evidence established wife's fitness.

Divorce — Custody of child

11. If a child of divorced parents is sufficiently mature to have intelligent views and wishes on the subject of his custody, a court may consider them as persuasive, though not controlling.

Divorce — Custody of child

12. Where 15 year old son of divorced parents testified in trial court that he desired to live with his father and would not live with his mother who had been given custody of him by divorce decree, and at time of appeal from order granting custody of the boy to the divorced husband, boy was almost 17, Supreme Court approved trial court's disposition of the custody of the boy.

Divorce — Alimony

13. Where divorced wife after divorce obtained work paying $130 a month and received $40 a month from rental of two rooms in her home, she was not entitled to have her alimony increased from $70 a month.

                  See 27 C.J.S., Divorce, § 238
                

Appeal from Circuit Court, Multnomah County.

CHARLES W. REDDING, Judge.

William A. Martin and Roland Davis, both of Portland (Davis, Herbring, DeMartini & Jensen, of Portland, on brief), for appellant.

C.C.M. Peterson, of Portland (Hurlburt & Peterson, of Portland, on brief), for respondent.

Before BELT, Chief Justice, and ROSSMAN, BAILEY, BRAND and HAY, Justices.

MODIFIED. REHEARING DENIED.

HAY, J.

The parties to this case intermarried in January, 1920. They lived together as husband and wife for twenty years. Early in 1940 they separated, and, on July 17th of that year, they entered into an agreement in writing in the nature of a property settlement. The agreement divided between them the property which they had accumulated during the marriage. In the division, the plaintiff received the family home in Portland, with furniture and equipment, and $1500 in cash. The defendant received certain stocks and bonds, and an automobile. He assumed payment of bills "on account of household or family expenses", totalling $706.87. In the event that a decree of divorce should thereafter be granted to either party, it was stipulated that the husband should pay to the wife, until she should remarry, $70 monthly for her support and maintenance; that the wife should be given custody of Frank Wilson Hurner, the minor child of the parties, and that the husband should pay her $45 a month for the support of such child. The agreement contained the following paragraph:

"The intent of this agreement is limited to defining the financial responsibilities, rights and obligations of the parties hereto. The party of the first part (the wife) agrees to accept the foregoing in full settlement and satisfaction of all her claims upon the party of the second part for alimony, support and maintenance, attorney's fees and suit money, if any, and as a separation and division of their properties, irrespective of any divorce being had between the parties."

Thereafter, at the suit of the wife, the circuit court for Multnomah County, on July 30, 1940, entered a default decree dissolving the marriage. The husband made no appearance. The decree approved and adopted the property settlement.

On October 5, 1944, the defendant filed a motion to modify the decree by awarding him the custody of the child and relieving him of any further payments for maintenance of the plaintiff or for support of the child. In support of his motion, he submitted his own affidavit, in which he stated that, since the date of the decree, "the conditions surrounding the parties * * * have materially changed in that the minor child of said parties has not received while in the custody of the plaintiff, the care, consideration and nurture that he should"; that the plaintiff "has not been a fit and proper mother and companion to said minor", but left home early in the morning and did not return until nine o'clock p.m., which obliged the child to "prepare his own breakfast and shift for himself during the entire day"; that the child was required to work after school, on Saturdays, and during summer vacation months; that plaintiff refused to allow him to have the companionship of others of his own age; that, on several occasions, when the child remonstrated against such treatment, plaintiff became morose and moody, and threatened to take poison; that plaintiff, on many occasions, attempted, through false statements to the child respecting his father, to turn the mind of the child against the latter; that, in July, 1944, the child arrived at his father's home in San Mateo, California, "worn out, tired, fatigued and extremely nervous", and wearing shabby clothes; that he refused to return to his mother; that, under the circumstances, defendant has retained the child in his custody and will give him better care than he has received from his mother. Further, the affidavit states that plaintiff is "in excellent health, strong of body, able and willing to work", is unmarried, is now gainfully employed, and has been employed almost constantly since the date of the decree.

The plaintiff countered by moving for a modification of the decree to increase her maintenance allowance to $100 a month and the allowance for support of the child to $50 a month. In support thereof, and in opposition to defendant's motion, she filed her own affidavit, in which she denied generally the allegations of defendant's affidavit, and alleged facts indicating that she had properly supported and cared for the child. She admitted having taken employment, pointing out that the amount paid her under the decree for her own maintenance and for the support of the child totaled only $115 per month, which, unless augmented by other means, was insufficient for those purposes. She alleged that, at the time of the filing of her affidavit, she was employed as a bulletin clerk in the Agricultural Extension Service, State College of Washington, that her hours of employment were from eight a.m. to 5 p.m., and that her salary was $130 per month. She admitted that she had allowed her son to do certain work after school hours, similar to that being done by all of his high school companions, and denied that such work was too strenuous for him. She stated that, shortly after the decree was entered herein, she sold her Portland residence for about $5,000 and removed, with the child, to Pullman, Washington, where, in June, 1943, she purchased a home at a cost of $7,500. Up to that time, she said, her son appeared to have been completely happy and contented, and he took a great deal of pleasure in their new home. Her affidavit is supported, in part,...