Noble v. Noble

• Decision Date: 05 June 1940
• Citation: 164 Or. 538,103 P.2d 293
• Parties: NOBLE <I>v.</I> NOBLE
• Court: Oregon Supreme Court

164 Or. 538

103 P.2d 293

NOBLEv.

NOBLE

Supreme Court of Oregon.

Argued March 13, 1940.

Reargued June 5, 1940.

Modified June 11, 1940.

Statutes — Title and subject of act

1. The constitutional requirement that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title, is not intended to restrict the scope or magnitude of a single subject of a legislative act, and, although the subject must be single, the provisions involved may be multifarious.

Husband and wife — Children — Care — Custody — Support

2. The care, custody, and support of minor children is incidental to and a part of the controversy in wife's "separate maintenance suit," as in a "divorce suit" which is akin to a separate maintenance suit in that a "maintenance award" is "alimony" and an essential element of wife's separate maintenance suit is that she is living apart from husband through no fault of her own.

Statutes — Title of act

3. The statutory provisions for support of minor children and for suit money, including attorneys' fees, and custody of minor children pendente lite, are sufficiently germane to subject expressed in title, "An Act to Provide for the Support of Married Women" to satisfy constitutional requirement that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.

Statutes — Support pendente lite

4. The language of statutory provision that, pending wife's separate maintenance suit, court may require husband to conform to provisions of specified section of divorce statute which provides for support of minor children pendente lite is sufficiently clear to be enforceable and to authorize such an order for support of minor children pendente lite.

Statutes — Errors in compilation

5. Where title of amendatory statute referred to an official publication of statute under name by which it was generally known to lawyers and the courts rather than by its official designation and cited a nonexistent title and chapter, but the section number cited was the only section in the publication so that the publication and section were indicated with reasonable certainty, errors in title were obvious clerical errors which could be disregarded and which did not invalidate the amendment.

Husband and wife — Separate support

6. A married woman's proceeding for separate support for herself and minor children is a statutory proceeding and it is therefore

essential that parties invoking the aid of the statute bring themselves within its provisions and comply with its requirements.

Husband and wife — Support — Minor children

7. Under statute authorizing proceeding by married woman for separate support for herself and minor children "living with her," it was essential to the right to support for children that they were living with mother at time she commenced suit, and provisional and final orders for such support were erroneous where fact that children were living with mother was not pleaded.

Statutes — Construction

8. The two statutes relating to support of married women and minor children are not inconsistent and should be read together as though they constitute one law.

Statutes — Repeal by implication

9. Repeals by implication are not favored and before such repeal is established there must be between two acts plain, unavoidable and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy.

Statutes — Construction

10. Where two statutes exist on the same subject, the courts will adopt any reasonable construction which will sustain both statutes.

Statutes — Support — Minor children

11. Where original statute authorized any married woman to obtain an order upon her husband for her support and the support of her minor children "living with her," but subsequent statute on the same subject omitted words "living with her," such limitation in original statute was not repealed by implication, but would be construed to apply to, and as a limitation upon, the subsequent statute.

Statutes — Construction — Amendment

12. Where a statute adopts a part or all of another statute by a specific and descriptive reference thereto, such adoption takes the statute as it exists at that time, and does not include subsequent additions or modifications of the statute unless it does so by express intent.

Statutes — Separate maintenance

13. Where divorce statute adopted by reference by amendment to separate maintenance statute did not at time of such adoption provide for support for wife pendente lite, a subsequent amendment to the divorce statute so as to provide for such support pendente lite did not become a part of the separate maintenance law.

Husband and wife — Statutes — Construction

14. The statute relating to separate maintenance proceedings does not authorize, and the court therefore may not grant, an order for support of wife pendente lite.

Husband and wife — Separate maintenance

15. Separate maintenance proceedings are special and statutory, hence the court has only such powers therein as the legislature has granted it.

Husband and wife — Attorneys' fees

16. In wife's suit for separate maintenance, circuit court could award suit money, including attorneys' fees.

Husband and wife — Custody of children

17. In wife's separate maintenance suit, circuit court was authorized by statute to grant wife custody of minor children pendente lite, but the statute did not expressly make provision for, and court therefore could not grant, permanent custody of the children.

Husband and wife — Equity

18. Notwithstanding circuit court is governed by equitable principles in exercising powers conferred upon it by statute in a separate maintenance suit, the court does not exercise general equity powers in such a suit so as to authorize an order granting permanent custody of minor children to wife in absence of statutory authority to make such order.

Husband and wife — Custody of children

19. Failure of husband in wife's separate maintenance suit to comply with order granting custody of minor children to wife pendente lite was a matter to be dealt with in the first instance by the circuit court, and supreme court on appeal could not consider a motion filed by wife in supreme court to require husband to comply with the order.

                  See 27 Am. Jur. 16
                  59 C.J., Statutes, § 379
                

Department 2.

Appeal from Circuit Court, Marion County.

L.G. LEWELLING, Judge.

Action by Mabel P. Noble against Herbert P. Noble for separate support for plaintiff and minor children. From a decree for plaintiff, defendant appeals.

MODIFIED.

Allan G. Carson, of Salem (William J. Linfoot and Carson & Carson, all of Salem, on the brief), for appellant.

W.C. Winslow, of Salem (W.W. McKinney, of Salem, on the brief), for respondent.

LUSK, J.

On this appeal, we are called upon to determine the validity of certain orders entered by the court below in a proceeding by the plaintiff, a married woman, for separate support for herself and minor children, brought under the provisions of § 33-207, et seq., Oregon Code 1930. The decree was in favor of the plaintiff, and the defendant, her husband, has appealed. The testimony has not been brought up, and the questions made arise upon the record, and the construction proper to be given to the applicable statute. There is an assignment of error attacking the decree in toto, but, as the argument in support of it is manifestly unsound and devoid of merit, it will not be further noticed.

Before decree the circuit court entered orders granting to plaintiff the custody of the three minor children of the parties pendente lite, making an award to the plaintiff of suit money, including attorney's fees, and directing the payment by the defendant to plaintiff of certain monthly sums for the support of the plaintiff and the minor children pendente lite. In the decree, the circuit court granted permanent custody of the minor children to the plaintiff, ordered the defendant to contribute the sum of $75 a month to the plaintiff for her support and that of the minor children, and gave a judgment to the plaintiff for $125 attorneys' fees, which the defendant had been therefore directed to pay, but had failed to pay.

The challenge of the defendant is directed against those orders, both provisional and in the final decree, which have to do with the support and custody of the minor children, and the award of suit money, including attorneys' fees. The court is said to have been without power or jurisdiction to make any of them; and, with respect to the order for the support of the minor children, it is further claimed that the petition does not state the necessary facts to afford a basis for such relief.

For a proper understanding of the questions thus presented, it is necessary to advert to the governing statute. As originally enacted in 1889, it read as follows:

"AN ACT

"To Provide for the Support of Married Women.

"Be it enacted by the Legislative Assembly of the State of Oregon:

"Section 1. That 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 and the support of her minor children, if any, by said husband living with her.

"Section 2. 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 equitable in view of the circumstances of both parties.

"Section 3. The practice in such cases shall conform as nearly as may be to the...