Picker v. Vollenhover
| Decision Date | 06 October 1955 |
| Citation | 206 Or. 45,290 P.2d 789 |
| Parties | Audrey PICKER, formerly Audrey Vollenhover, Appellant, v. S. LeRoy VOLLENHOVER, Respondent. |
| Court | Oregon Supreme Court |
John E. Walker, Portland, argued the cause for appellant. With him on the brief was Morgan S. Pritchett, Portland.
Marvin S. W. Swire, Portland, argued the cause for respondent. With him on the brief were Rosenberg, Swire & Coan and Philip A. Levin, Portland.
Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.
On the 18th day of July, 1949, the plaintiff and defendant were divorced by decree of the Circuit Court of Cook County, Illinois. On 5 August 1952 the plaintiff filed her amended complaint in the Circuit Court of Multnomah County, Oregon, seeking the establishment in that court of the Illinois divorce decree and praying for the enforcement thereof as an Oregon decree. The defendant filed his answer. No reply was filed thereto, and on 13 August 1952 the plaintiff moved for judgment on the pleadings and for an order enrolling the Illinois decree as a decree of the circuit court. On 27 January 1953 the court denied the motion. The court took testimony in January and again in May, 1953, and on 28 May 1953 a second amended decree was entered. The Oregon court found certain of the provisions of the Illinois decree to be 'invalid and unenforceable' and refused to establish them as a part of an Oregon decree, but it then proceeded to establish the portions of the Illinois decree which were deemed valid as an Oregon decree. The plaintiff appeals. There was no cross appeal by the defendant.
The question for decision requires that the Illinois decree be examined in some detail. We shall first summarize the portions of the Illinois decree which were incorporated in and established as parts of the Oregon decree. We will then set forth verbatim the portions of the Illinois decree which the Oregon court held to be invalid and which were therefore not included in the Oregon decree.
The Oregon court established the following provisions of the Illinois decree as an Oregon decree:
The marriage is dissolved.
The plaintiff is given custody of the minor child.
Defendant is to contribute $25 per week for the support of the child.
Debts incurred during the marriage are to be paid by defendant.
Plaintiff shall retain certain specified property as her own.
Certain real property is to be sold and proceeds divided equally.
Personal belongings shall remain sole property of each.
Detailed provisions for the education of the minor child are made.
Right of visitation is granted to defendant, the details thereof being specified.
The plaintiff and child may live anywhere in the United States.
Defendant shall pay extraordinary medical and dental expenses of the child.
Moving expenses incurred if the Illinois property is sold shall be shared equally.
Defendant shall pay all of plaintiff's attorney fees in the divorce proceedings.
The parties accept the provisions of the decree and release all other claims as heirs, etc.
The foregoing summary covers roughly those provisions which were contained in the Illinois decree and which were established as an Oregon decree. The Oregon decree also contained provisions which were not found in the Illinois decree. For example, defendant was directed to pay the $25 per week for the child's support to the County Clerk of Multnomah County, Oregon. The decree also recited that plaintiff has remarried and that defendant has paid plaintiff the sum of $25 a week during the entire year of 1952 and 'to and including the date of trial hereof.'
The portions of the Illinois decree which were held invalid and unenforceable and which were not established as part of the Oregon decree read as follows:
'That said weekly payments on behalf of the minor child shall be increased in the event that the defendant increases his earnings and said increases shall be on the following basis:
Weekly payments When defendant earns
shall be: more than
$35.00 $200.00 per week
45.00 250.00 per week
55.00 300.00 per week
and in the event that the defendant earns more than Three Hundred and 00/100 ($300.00) Dollars per week, the question of increasing the support and maintenance of the minor child shall be subject to the further order of this Court; in the event that the annual earnings of the defendant drop below Five Thousand Six Hundred and 00/100 Dollars, then and in that event total weekly payments herein provided shall be reduced to Forty and 00/100 ($40.00) Dollars per week for support and maintenance of the minor child and plaintiff, and it shall be construed as to be equally divided between said minor child's support and said plaintiff.
* * *
* * *
'It is further ordered, adjudged and decreed that the defendant assign existing insurance in the amount of Ten Thousand ($10,000.00) Dollars and to designate as sole beneficiary of said insurance the minor child, Jill Diane Vollenhover; that this designation shall be irrevocable until she reaches the age of Eighteen (18) years; that the defendant is not to make any policy loans on said insurance prior to the Eighteenth birthday of the minor child Jill Diane Vollenhover, provided, however, that if necessity compels or requires a policy loan, that then adequate additional provisions shall first be made by the defendant which shall be made payable as aforesaid to the minor child; that defendant shall authorize the insurance company or insurance companies involved to issue duplicate notices of premiums due and receipts for premiums paid to the plaintiff.
* * *
* * *
The plaintiff presents a single assignment of error which reads as follows:
'The court erred in denying enrollment of the entire Illinois Decree as a decree of a sister state and in overruling plaintiff's motion for judgment on the pleadings.'
In a brief of exceeding brevity the plaintiff argues that the Illinois court had jurisdiction of person and subject matter, and she treats the contention of the defendant as an attack, not upon jurisdiction, but upon the manner in which jurisdiction was exercised. She contends that the entire Illinois decree should have been enrolled in Oregon and that in refusing to establish the entire decree in Oregon the Oregon court was attempting to act 'as an appellate tribunal to correct the possible errors of the Illinois court.' She then cites Reed v. Hollister, 95 Or. 656, 188 P. 170, which holds that no appeal lies from the courts of a sister state to the courts of Oregon. We agree that the Illinois court had jurisdiction of person and subject matter. Jurisdiction of subject matter was conferred on the court by Smith-Hurd Illinois Statutes, Perm.Ed., Ch. 40, § 5, and the defendant entered a general appearance in the case. We also agree that the Oregon court could not sit to correct the possible errors of the Illinois court.
The Illinois statutes confer upon divorce courts broad general powers to 'make such order touching * * * the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. * * *' Laws of Illinois 1947, Divorce, p. 819. The same provision appears in the 1949 Laws, page 729. Smith-Hurd Illinois Anno.Stat.Perm.Ed., Cumulative Annual Pocket Part, Ch. 40, § 19. Obviously, an Oregon circuit court can not reverse an Illinois decree on the ground that it is not 'fit, reasonable and just.' Since there was no appeal, the Illinois divorce decree was res judicata.
It is of interest to note that after the entry of the Oregon decree the plaintiff brought action in the Circuit Court of Cook County, Illinois, to recover the amount due under the original divorce decree. The arrearage was determined and adjudicated on the basis of the sliding scale, as set forth in the decree. The defendant Vollenhover appealed and the Illinois appellate court, Vollenhover v. Vollenhover, 4 Ill.App.2d 44, 123 N.E.2d 114, held that the divorce decree was not too indefinite or uncertain to be enforceable and the adjudication of the amount due under its provisions was affirmed. The subsequent litigation in Illinois merely confirmed the validity of the divorce decree which we were already required to recognize as a valid Illinois decree, notwithstanding the unusual provisions thereof which established a sliding scale for the future determination of the amount of support money.
Plaintiff's opening brief fails to apprehend the real question in this case. The Illinois decree was valid in Illinois and has been in force there. Our question is whether in view of its peculiar nature the Illinois decree should be enrolled in Oregon and given the force and effect of an Oregon decree, and if so, then to what extent and by what procedure. A further question is suggested: Assuming that the plaintiff's decree of a sister state is entitled to enrollment as an Oregon decree, can the Oregon court enroll a part only of the foreign decree, omitting material portions thereof?
In his answering brief the defendant contends that the circuit court of Oregon properly omitted portions of the Illinois decree because the Illinois court had exceeded its powers. At the oral argument, however, the defendant, being influenced by the subsequent litigation in Illinois, expressly conceded that the divorce decree was valid in Illinois. He now contends that the Oregon court was not required to enroll or...
To continue reading
Request your trial
-
In re Williams
...modification, and it is impossible for a court to provide in advance for changes that may occur." Id. ; see also Picker v. Vollenhover , 206 Or. 45, 72, 290 P.2d 789 (1955) (criticizing a support decree providing for future increases in child support tied to one party's earnings, which was ......
-
Aldrich v. Aldrich
...57 L.Ed. 347; Barber v. Barber, 62 U.S. (21 How.) 582, 16 L.Ed. 226; Babcock v. Babcock, 147 Misc. 900, 265 N.Y.S. 470; Picker v. Vollenhover, 206 Or. 45, 290 P.2d 789; Van Natta v. Van Natta, Court of Civil Appeals of Texas, 200 S.W. In 2 Black on Judgments, second edition, 1902, Chapter 2......
-
Hunter v. Hunter
...support based upon the single criterion of non-custodial parent income is improper. 5 The Oregon Supreme Court, in Picker v. Vollenhover (1955) 206 Or. 45, 290 P.2d 789, refused to enforce an Illinois decree and ruled that support payments based upon fluctuations in the father's income alon......
-
Falls v. Falls, 8010DC502
...materially different from those shown by the evidence and which cannot reasonably be predicted from the evidence. Picker v. Vollenhover, 206 Or. 45, 290 P.2d 789 (1955). Other courts reject "self-adjusting" portions of child support orders because the needs of the child and the income of th......