Kelley v. Kelley
| Decision Date | 30 March 1948 |
| Citation | 191 P.2d 656,183 Or. 169 |
| Parties | KELLEY <I>v.</I> KELLEY |
| Court | Oregon Supreme Court |
1. A wife suing for support in 1939 was required under the statutes then in force to prove that her husband was able to contribute and that he neglected to do so, and she was required to prove no other delict. O.C.L.A. §§ 63-212 to 63-215.
Divorce — Husband and wife — Maintenance — Statutes
2. An order for maintenance entered in support money proceeding under statutes repealed in 1941 did not lessen rights and duties resulting therefrom, but decree in separation proceeding under statutes enacted in 1941 is in nature of limited divorce and withholds from offending spouse, rights which previously were his and releases guiltless spouse from performance of duties which previously were owed. O.C.L.A. § 63-212 et seq.
Judgment — Res adjudicata
3. Two or more actions based upon one or more like issues may be so similar in nature that a finding entered in the one first tried becomes res judicata as to like issues in second case.
Husband and wife — Desertion — Support money proceedings — Separation proceeding
4. A finding concerning husband's desertion in wife's support money proceeding under statutes repealed in 1941 would not bar wife from maintaining separation proceeding, in which desertion was also charged, under statutes enacted in 1941, since court was without power to make finding in respect to desertion in support money proceeding, and transaction which was subject matter of support money proceeding was husband's failure to support wife and not desertion, and transaction which was subject matter of separation proceeding was husband's desertion. O.C.L.A. § 63-212 et seq.
Husband and wife — Statutory support money proceeding
5. In conducting statutory support money proceeding under statutes repealed in 1941, court could not determine issues not granted to it by the statutes. O.C.L.A. §§ 63-212 to 63-216.
Husband and wife — Support money proceeding — Desertion — Immaterial
6. In support money proceeding under statutes repealed in 1941, whether husband had deserted wife was immaterial and any averments upon that subject were surplusage. O.C.L.A. §§ 63-212 to 63-217.
Husband and wife — Support money proceeding — Separation proceeding
7. A wife's support money proceeding under statutes repealed in 1941 did not bar wife from maintaining separation proceeding under statutes enacted in 1941, since the suits were based on different charges and the remedies were not concurrent when the first proceeding was instituted and the two remedies were dissimilar. O.C.L.A. § 63-212 et seq.
Courts — Legislature — New right — Remedy — Jurisdiction
8. Where Legislature creates a new right and renders available a remedy for infraction of the right or creates an additional remedy for transgression of an existing right, the court to which jurisdiction is given over the subject of the new legislation is invested by statute with all judicial power essential to carry into effect the legislative purpose in adopting the new act, and the new act need not say that the court shall have power to dispose of defenses submitted by those charged with violation of the new act, but power to hear and dispose of such defenses is implied. O.C.L.A. § 13-715; Const. Orig. art. 7, § 9.
Divorce — Husband and wife — Court — Implied power
9. Where one against whom another is seeking a divorce, a separation, or support money denies that he is the husband of the plaintiff, the court has implied power to determine the truth of the denial. O.C.L.A. §§ 13-715, 63-212 et seq.; Const. Orig. art. 7, § 9.
10. At least one of parties must have domicile in state granting divorce decree.
Divorce — Full faith and credit
11. The full faith and credit clause of federal Constitution does not preclude Oregon courts from impeaching Nevada divorce decree procured by husband upon becoming satisfied that husband did not establish Nevada domicile. U.S.C.A. Const. art. 4, 1.
Divorce — Nevada decree — Domicile
12. A Nevada divorce decree, obtained by husband who had no intention of abandoning his Oregon domicile and of acquiring a new domicile in Nevada, was void.
Husband and wife — Support money
13. Where wife was awarded $10 support per month in prior support money proceeding under statutes repealed in 1941 and $10 support per month in separation proceeding under statutes enacted in 1941, husband would be required to pay any arrears under prior award, after which such award would be terminated, where it was not intended that wife should have both awards. O.C.L.A. § 63-212 et seq.
See note, 157 A.L.R. 1399
17 Am. Jur. 286
42 C.J.S., Husband Wife, § 627
Appeal from Circuit Court, Multnomah County.
B.G. Skulason, of Portland, argued the cause and filed a brief for appellant.
Earl F. Bernard, of Portland, argued the cause for respondent. On the brief were Collier & Bernard and William F. Bernard and William K. Shepherd, of Portland.
Before ROSSMAN, Chief Justice, and LUSK, KELLY, BAILEY and HAY, Justices.
Suit for separate maintenance and for other relief by Anna Kelley against Emery B. Kelley. From the decree, the defendant appeals.
AFFIRMED.
This is an appeal by the defendant from a decree of the circuit court which (1) adjudged that a decree of divorce granted the defendant from the plaintiff in the state of Nevada was void; (2) awarded the plaintiff from the defendant a separation from bed and board; and (3) ordered the defendant to pay $10 monthly towards the support of the plaintiff. The appellant (husband) and respondent (wife) were married October 19, 1935, in the state of Washington. Both were domiciled in Oregon. In December, 1938, the appellant deserted the respondent. June 14, 1939, the respondent filed in the Circuit Court for Multnomah County a petition which prayed for an order requiring the appellant to contribute to her support. After issue had been joined and a trial had been had the circuit court entered a decree October 26, 1939, awarding the respondent support money. January 16, 1945 the appellant left Oregon and went to Nevada where, on April 17, 1945, he was given a decree of divorce from the respondent. Immediately after the entry of the decree he returned to Oregon. June 6, 1945, the respondent instituted this suit. It is based upon a charge of desertion. The appellant does not challenge the sufficiency of the evidence which proves the desertion.
The appellant presents two assignments of error. The first is:
The following is the second assignment of error:
"It was error to set aside the Nevada decree."
In support of the first assignment of error, the appellant argues that the decree entered October 26, 1939, which ordered him to contribute toward his wife's support estops her from maintaining this suit. He says:
1. When the suit was filed which terminated in the decree of October 26, 1939, a section of our laws read as follows:
"It shall be lawful for any married woman to apply to the circuit court of the county in which she resides for an order upon her husband to provide for her support." § 63-212, O.C.L.A Section 63-213 said:
"Her petition shall set forth the facts and circumstances upon which she relies for such order, and if it shall appear to the court, after hearing the parties, that said husband is able to support or contribute to the support of his wife and said children, if any, and that he neglects or refuses to perform his duty in that respect, the court shall have power to make such decree as to the support of said wife and children, if any, by said husband as shall be suitable * * *."
Sections 63-214 and 63-215 delineated the practice in support proceedings. The four sections just mentioned were adopted in 1889 and repealed in 1941. It is seen from the foregoing that the wife, in order to obtain a decree for support money, was required to prove that her husband was able to contribute and that he neglected to do so. She was required to prove no other delict. See Kiessenbeck v. Kiessenbeck, 145 Or. 82, 26 P. (2d) 58.
The support statute which we just reviewed was repealed by 1941 Oregon Laws, chapter 408, which, in addition to effecting the repeal, authorized the circuit court to enter decrees for the separation of married persons from bed and board. The 1941 act, however, did not repeal §§ 63-216 to and including 63-218, O.C.L.A., which, as said in Noble v. Noble, 164 Or. 538, 103 P. (2d) 293, relate "to the same subject" as the repealed sections. We leave unmentioned the sections of our laws which authorize divorces a vinculo matrimonii, for they are not germane to this suit.
Permanent separation from bed and board under the 1941 act may be decreed if the wrongful spouse is guilty of adultery. Separation may be ordered for a limited or an unlimited period upon a finding of willful desertion, conviction of a felony, habitual gross drunkenness or cruel treatment. The act authorizes the court to grant incidental relief, not only in the final decree, but also pendente lite. For instance, the final decree may include provisions for the custody of minor children and their maintenance, for the recovery from the party in fault of contributions for the support of the other, for the delivery to either party of personal effects in the possession of the other and for the appointment of trustees to collect and invest...
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