Rigdon v. Rigdon

• Decision Date: 02 December 1959
• Citation: 219 Or. 271,347 P.2d 43
• Parties: Luch RIGDON, Respondent, v. Edward L. RIGDON, Appellant.
• Court: Oregon Supreme Court

Page 43

347 P.2d 43

219 Or. 271

Luch RIGDON, Respondent, v. Edward L. RIGDON, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 13, 1959.

Decided Dec. 2, 1959.

Samuel A. Hall, Brookings, argued the cause and filed briefs for appellant.

Donald F. Myrick, Grants Pass, argued the cause for respondent. On the brief were Coluter & Myrick and Joseph J. Brown, Grants Pass.

Before McALLISTER, C. J., and PERRY, O'CONNELL, and REDDING, JJ.

PERRY, Justice.

The plaintiff brought this action at law to recover money from the the defendant. Her complaint is based upon the decree of the divorce court in the state of Nevada and, so far as is material, alleges:

'I.

'That on the 26th day of September, 1939, by consideration of the District Court of the State of Nevada in and for the County of Washoe in the Second Judicial District, then and there and at all times thereafter being a court of general jurisdiction duly created, organized and existing under authority of the State of Nevada, judgment was duly and regularly entered and rendered against the Defendant herein and in favor of the Plaintiff herein, by the terms of which judgment the Defendant herein was ordered to pay the sum of $60.00 per month to the Plaintiff herein for her support and maintenance until her death or remarriage, said payments to commence on the 26th day of September, 1939.

'II.

'That the Plaintiff herein has not remarried, and the said judgment ever since its rendition has been and now is, in full force and effect.

'III.

'That by reason of said judgment, said monthly payments of $60.00 were due and payable and the Defendant was indebted to the Plaintiff therefor on the 26th day of each calendar month between the 26th day of February, 1954 and the 26th day of January, 1957, both months inclusive, or a total of $2,100.00; that the Defendant has not paid said sum or any part thereof, and there is now due and unpaid to the Plaintiff from the Defendant the said sum of $2,100.00, with interest on said installments from their respective maturity dates.'

This action was tried before the trial court without a jury and a judgment having been rendered in favor of the plaintiff and against the defendant, the defendant appeals.

The facts disclose that the plaintiff and defendant, prior to the entry of the decree of September 26, 1939, were wife and husband; that plaintiff was awarded a decree of divorce from the defendant in the second judicial district court of the state of Nevada in Washoe County and a decree was entered therein as follows:

'Therefore, it is ordered, adjudged and decreed that the plaintiff take nothing by his complaint filed herein but the defendant be, and she is hereby awarded, judgment against the plaintiff, dissolving the contract of marriage and bonds of matrimony now and heretofore existing between them and restoring both parties to the status of unmarried persons.

'It is further ordered that the agreement heretofore entered into between the plaintiff and defendant herein settling all property rights between them and arranging for the care, custody and support of the minor children of the parties, as set forth in the Findings of Fact filed herein, be, and the same is hereby ratified, approved and confirmed, and adopted by the Court as a part of its judgment herein, and the defendant is hereby ordered to comply therewith, the Court reserving unto itself the jurisdiction to make such further provision for the support and maintenance of the minor children of the parties as the circumstances may in the future warrant.'

The Findings of Fact referred to in the decree, and which were introduced as evidence in this cause, as far as material to the issues raised by this appeal, are as follows:

'* * * that the plaintiff [defendant herein] and defendant [plaintiff herein] have agreed upon a satisfactory and reasonable disposal of the property belonging to the community existing between them and for the care, custody and support of the minor children, as follows:

'The defendant shall have the full custody of the minor children of the parties; with right of reasonable visitation to the plaintiff.

'The plaintiff will execute a good and sufficient deed conveying to the defendant, as her sole and separate property, the home of the parties situated in Barlow, Clackamas County, Oregon;

'That commencing on the 26th day of September, 1939, the plaintiff will pay to the defendant the sum of One Hundred Fifty-Five Dollars ($155.00) per month for the support and education of the minor children and for the support and maintenance of the defendant, as follows:

'35.00 per month for Betty M. Rigdon until she reaches the age of twenty-one years;

'$25.00 per month for Ralph E. Rigdon until he becomes self-supporting or until he reaches the age of twenty-one years, whichever event shall first take place;

'$35.00 per month for Robert E. Rigdon, until he becomes self-supporting or until he reaches the age of twenty-one years, whichever event shall first take place; and

'$60.00 per month for the support and maintenance of the defendant until her death or remarriage.

'The plaintiff will convey to the defendant a life estate in twenty (20) acres of land situated in Marion County, Oregon, now held jointly by plaintiff and defendant, subject to a life interest in said property of plaintiff's father, and to make and execute a deed to said property to Robert Rigdon to become his sole and separate property in fee simple upon the death of defendant and plaintiff's father James F. Rigdon, and the extinguishment of the life estates of said parties.

'The plaintiff will make and execute a mortgage upon the gravel pit and machinery situated in Barlow, Clackamas County, Oregon, and upon plaintiff's leasehold on the Monitor gravel pit and machinery in Monitor, Oregon, and will make and execute a quitclaim deed to said gravel pits in Barlow and Monitor, Oregon, conveying all of plaintiff's right, title and interest thereto to the defendant, said deed to be placed in escrow with Harlan L. Heward in Reno, Nevada, and to be delivered to the defendant upon the death of the plaintiff.

'The plaintiff agrees further to purchase for the defendant a new Ford or Plymouth sedan automobile within sixty (60) days to be conveyed to the defendant and to become her sole personal property, the defendant to deliver to the plaintiff the 1935 Ford sedan now in her possession.

'Both parties have agreed to make and execute any and all conveyances and instruments necessary to carry out the provisions of said agreement, and have agreed that after said agreement has been fully complied with by plaintiff and defendant, neither of the parties shall have any claim of any kind or nature against the other, or upon the property of the other by reason of the marital relationship existing between them, other than as provided by said agreement.'

The contentions of the defendant upon this appeal resolve themselves entirely into the question of whether the decree of the Nevada court merged the property settlement and alimony agreement of the parties into its judgment so that an action may be maintained thereon, or whether the Nevada court merely approved the settlement and left the parties to seek their remedy by action upon the contract.

The...