Mack v. Mack

• Decision Date: 25 March 1919
• Citation: 91 Or. 514,179 P. 557
• Parties: MACK v. MACK.
• Court: Oregon Supreme Court

179 P. 557

91 Or. 514

MACK v. MACK.

Supreme Court of Oregon

March 25, 1919

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Suit for divorce by Meade L. Mack against Fred B. Mack. From modified decree, defendant appeals. Modified and affirmed.

The facts involved upon this appeal are as follows: On the 5th day of July, 1911, the plaintiff filed a suit in the circuit court for Multnomah county, Or., against this defendant for a divorce, alleging that she had been married to defendant in the year 1900, and that her daughter, Roberta, was then 10 years of age. Personal service was had upon defendant in the same county. A default was entered against defendant, and the plaintiff was granted a divorce, and awarded the care and custody of Roberta Mack and Emmett Mack, minor children of plaintiff and defendant, the issue of such marriage, in conformity with the allegations and prayer of the complaint. In 1918 the plaintiff filed a motion in the case, supported by an affidavit, praying that the decree be modified so as to provide for an award against the defendant for the care nurture, and education of the minors. An order to show cause having issued, the defendant duly appeared in the proceedings, contested the motion, and the cause was heard. Thereupon the court made findings of fact and conclusions of law favorable to the plaintiff, to the effect that the plaintiff was entitled to an award of $40 a month for the care, nurture, and education of the minors or either of them and the further sum of $150 with which to defray the expense which was unpaid, of a surgical operation which had been performed upon the minor Roberta; that the defendant was an ablebodied man, and was earning $130 or more per month, and was well able to pay said sum, and that the same was a reasonable payment to be required of him for the purpose.

On September 25, 1918, a modified decree was entered giving the plaintiff judgment for the sum of $230, being payments of $40 per month for the months of August and September, and the further sum of $150 with which to defray the expense of a surgical operation upon the minor Roberta, and an award of $40 per month, beginning with the month of October, to continue while the minors, or either of them, are under legal age. The defendant appeals from this modified decree.

Paul C Dormitzer, of Portland, for appellant.

Homer D. Angell, of Portland (Angell & Fisher, of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

It is claimed by defendant that the court had no jurisdiction to change the decree. Section 514, L. O. L., reads as follows:

"At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power 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 the minor children, or the nurture and education thereof, or the maintenance of either party to the suit."

Under the authority of the section of the Code quoted, courts may at any time subsequently to a decree of divorce, on proper notice to the other party, require the party in fault to contribute to the future support and education of the minor children, the issue of the marriage which has been dissolved. The duty of parents to care for and educate their children is not affected by a divorce. After the dissolution of the bonds of matrimony, such children are wards of the court.

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