Jackman v. Short

• Decision Date: 04 February 1941
• Citation: 165 Or. 626,109 P.2d 860
• Parties: JACKMAN <I>v.</I> SHORT
• Court: Oregon Supreme Court

165 Or. 626

109 P.2d 860

JACKMAN

v. SHORT

Supreme Court of Oregon.

Argued October 15, 1940.

Modified February 4, 1941.

Divorce — Minor children — Support

1. That mother remarried after obtaining a divorce and that her three minor children lived with her and her new husband under the same roof did not relieve father of his duty to support children.

Divorce — Minor children — Support

2. On question of validity of order amending divorce decree in favor of wife, by ordering husband to pay to wife support money for their three minor children, evidence was sufficient to show that husband possessed ability to support the three children.

Divorce — Support of children

3. The statute authorizing the court which entered a divorce decree to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of minor children or the nurture and/or education thereof, authorizes the entry of an order requiring support of the children born of the union even if the divorce decree was silent on the subject.

Divorce — Support of children

4. When a child of divorced parents reaches the age of majority and thus ceases to be a ward of the courts, the statutory authority of the court entering the divorce decree to make provision for his nurture and education ceases.

Divorce — Education of children

5. Under statutes authorizing the court granting a divorce decree to require the party at fault and not allowed the care and custody of children to contribute toward the nurture and education thereof, the needs of society and government as well as the needs of the family must be taken into consideration in construing the words "contribute toward the nurture and education thereof."

Divorce — Education of children

6. Under statutes authorizing the court granting a divorce to require the party in default and not allowed the care and custody of children to contribute toward the nurture and education thereof, an award for a college education made in behalf of a child displaying sufficient capacity is permissible.

Divorce — Education of children

7. That minor daughter of divorced parents had completed her high school education, that she was willing to earn a part of her expenses at college, and that mother who was awarded divorce decree and custody of three minor children believed that daughter was entitled to go further with her education, sufficiently showed,

in absence of anything to the contrary, that daughter had the necessary aptitude for matriculation at a college and authorized the circuit judge to take into consideration, in fixing amount to be awarded for nurture and education of children when amending divorce decree, additional expenses required for a college education for daughter.

Divorce — Ability to support

8. Evidence showed that $75 per month was the limit of father's ability to contribute to the nurture and education of his three minor children whose custody was awarded to mother by divorce decree.

                  Allowance in decree against parent for education of child
                notes, 18 A.L.R. 899; 47 A.L.R. 118. See, also, 17 Am. Jur. 531
                27 Am. Jur. 762; 14 R.C.L. 258 (5 Perm. Supp. 3575)
                  19 C.J., Divorce, § 814
                

In Banc.

Appeal from Circuit Court, Klamath County.

EDWARD B. ASHURST, Judge.

Suit for divorce by Barbara Grafton against Jack H. Grafton, wherein a decree of divorce was awarded to plaintiff. Barbara Jackman, formerly Barbara Grafton, filed a motion to amend the decree previously entered, and from an order amending the decree responsive to the motion, Jack H. Grafton appealed. Jack H. Grafton having died, Jerry A. Short, administrator with the will annexed of the estate of Jack H. Grafton, deceased, was substituted as appellant.

MODIFIED.

E.E. Driscoll and Harry D. Boivin, both of Klamath Falls, for appellant.

Willam Ganong, of Klamath Falls, for respondent.

ROSSMAN, J.

This is an appeal from an order of the circuit court which, responsive to a motion filed by the plaintiff, amended a decree of divorce previously entered by that court in the plaintiff's favor. The decree, pursuant to the prayer of the complaint, dissolved the marriage contract which, prior to its entry, existed between the parties, and awarded to the plaintiff (wife) the custody of the three children of which the plaintiff and the defendant were the parents. It, however, made no provision for the support of the children. The order aforementioned, being the subject-matter of review upon this appeal, amended the aforementioned decree by ordering the father to pay to the plaintiff support money for the three children. Specifically, it directed him to pay to the plaintiff $50 each month

"* * * for the nurture and education of Barbara Jane Grafton until she reaches the age of twenty-one years or until she shall marry, whichever may be the earliest date, and that the defendant at said times pay to plaintiff the further sum of $25 per month for the nurture and education of Jack H. Grafton, Jr. until he attains the age of twenty-one years, provided, however, that if said Jack H. Grafton, Jr. goes to college on completion of his high school course, that said payments for his benefit be increased to $50 per month during the nine months of each year while he is attending college; that said defendant further pay to plaintiff for the nurture and education of Mary Anne Grafton at said times the sum of $25 per month until she attains the age of twenty-one years or until she shall marry, whichever is the earliest date, provided that if said Mary Anne Grafton goes to college, said payments for her benefit shall be increased to $50 per month during the nine months of each year during which she is at college."

Since the hearing in this court the father died and Jerry A. Short, administrator with the will annexed of the father's estate, was substituted as appellant. For the sake of convenience, we shall refer to the father as the defendant.

At the time of the entry of the order the ages of the three children were: Barbara 18, Jack 14, and Mary 12. Barbara at that time had graduated from high school, and, according to the plaintiff, was "ready for college." Jack was in high school and Mary was about to enter a junior high school. The schools to which we refer were those of Malin. The plaintiff and her three children lived upon a farm near that place.

The bases for the awards requiring the payment of $100 per month for the nurture and education of the three children were findings that (1) fifty dollars per month was necessary for Barbara's needs while attending college; (2) the other two children's needs required $25 per month for each; and (3) the defendant was able to pay $100 per month. The defendant attacked each item of the award. He claimed not only a total inability to pay anything whatever for the support of his children but also that a college education is not within the contemplation of § 6-915, Oregon Code 1930, which authorizes courts to amend divorce decrees so as to make provision for the "nurture and education" of the children.

As we have said, the decree of divorce was entered February 28, 1938. In September of the same year the plaintiff married her present husband. The latter, the plaintiff and the three children reside in the same dwelling house. The plaintiff swore that she and her present husband are unable to maintain Barbara's expenses while she is attending college. As we have also said, the divorce decree made no award for the support of the children. The plaintiff's uncontradicted testimony indicates that when she filed her suit for divorce the defendant promised to help her take care of the children. One year, six months and ten days passed before the motion, which instituted the proceedings now under review, was filed. In that period the defendant, according to the plaintiff's testimony, paid for the support of the children $325. According to his testimony, the sum was $395. In that year and a half the defendant visited his children only three times. He freely conceded that neither the plaintiff nor the children made any effort whatever to prevent or interfere with his visits. His last visit was made in August 1938, and his last contribution of support money was made December 8, 1938. The motion which began this proceeding was filed June 24, 1939.

When the plaintiff filed her motion she accompanied it with a supporting affidavit. After service of the citation, the defendant filed a counter-affidavit in which he claimed:

"Prior to the filing of said divorce suit, I placed the plaintiff in the ownership of real property of the value of more than $4,000, and stock of the par value of $6,000. * * * It was understood and agreed that the real property and stock was to provide for the care and maintenance of the children of said marriage. * * *"

In a reply affidavit the plaintiff swore:

"I deny that prior to the filing of the divorce suit defendant placed in my ownership real property of the value of more than $4,000 * * * and state that the only real property ever placed in my name by defendant was a hill place of approximately fifty-two acres * * * said premises were improved with an unfinished farm-house * * *. Shortly after placing the said premises in my name (said premises having originally been purchased for $1,200) the defendant compelled me to borrow $1,200 on the same and mortgage therefor was given, which said mortgage has never been paid. * * * That the $1,200 received on said loan was kept and retained by said defendant. * * * The only stock ever turned over to me by defendant was capital stock in said Grafton-Jackson Company which said stock was then, ever since has been, and now is worthless and of no value whatever; that said corporation is not now and has not been since our said divorce engaged in any business, and said corporation has no assets whatever. * * * With reference to the real property above mentioned, said defendant has frequently said, not...