Scarth v. Scarth

• Citation: 315 P.2d 141,211 Or. 121
• Parties: Yvonne Hill SCARTH, Respondent, v. Robert Hill SCARTH, also known as Robert Hill, Appellant.
• Decision Date: 06 September 1957
• Court: Supreme Court of Oregon

Page 141

315 P.2d 141

211 Or. 121

Yvonne Hill SCARTH, Respondent, v. Robert Hill SCARTH, also known as Robert Hill, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 18, 1957.

Decided Sept. 6, 1957.

R. W. PicKell, Salem, argued the cause and filed a brief for appellant.

Theodore B. Jensen, Portland, argued the cause for respondent. On the brief were Davis, Jensen, Martin & Robertson, Portland.

Before PERRY, C. J., and LUSK, WARNER and KESTER, JJ.

KESTER, Justice.

This is a proceeding to modify a divorce decree with respect to the amount which the defendant (husband) was required to pay for the support of the minor child of the parties. From an order raising the support payments from $35 per month to $60 per month, the defendant appeals.

The principal question relates to the sufficiency of the notice of the application to modify the decree. In order to present the problem, it is necessary to review the proceedings in the trial court.

The divorce decree was entered December 17, 1953, after a contested hearing at which both parties appeared in person and by their attorneys. The decree granted the divorce to the plaintiff (wife) and awarded her custody of the minor child, together with an allowance of $35 per month for child support, plus a lump sum alimony payment, costs and attorney fees. At that time plaintiff was about 17 years of age and defendant had just turned 21. Defendant was a college student with limited earnings. In the divorce proceeding, defendant was represented by R. W. PicKell of Salem, his attorney of record.

Subsequent to the decree, the exact date not appearing, defendant was drafted into the armed forces of the United States. While in the service an allotment was established for the child from defendant's pay and allowances, in an amount greater than specified in the divorce decree. The allotment was paid directly to the county clerk.

Defendant desired that the excess of the allotment over the amount required by the decree be deposited to his credit in a bank. Accordingly, on December 22, 1954, a motion and proposed form of order to accomplish that purpose were forwarded by defendant's attorney to the county clerk for presentation to the court. Copies of the motion and order were sent to plaintiff's attorney, but the original motion did not bear any certificate or acknowledgment of service. The trial judge therefore did not enter the order, but instead he wrote to defendant's attorney inquiring whether plaintiff had been served with the motion and whether the matters set forth in the order were agreeable to plaintiff. The motion itself was not indorsed by the clerk as having been filed at that time, and it was subsequently returned to Mr. PicKell, who later filed it pursuant to the court's direction. ¹

On December 28, 1954, after plaintiff's attorney had received a copy of defendant's motion, plaintiff filed a motion, supported by her affidavit, for an order to show cause why the decree should not be modified so as to raise the child support to $75 per month. The motion was presented ex parte, and on the same date an order was entered requiring defendant to appear on January 4, 1955, and show cause why such a modification should not be made. The order to show cause was served on Mr. PicKell by mail, and an unsuccessful attempt was made to have it served by the Marion County sheriff on the defendant personally.

On January 4, 1955, plaintiff, her attorney, and Mr. PicKell appeared at the show cause hearing. At that time Mr. PicKell advised the Court that his appearance was special only, for the purpose of contesting the jurisdiction of the court. He said that he had not seen the defendant, that he did not have the defendant's address and that he had no authority to appear for the defendant on the merits of plaintiff's motion. With respect to defendant's motion to have the excess of the allotment deposited in his bank account, Mr. PicKell took the position that this did not subject defendant to the jurisdiction of the court for any modification of the decree, as his motion dealt only with the overplus, to which defendant claimed he was entitled in any event.

The trial court held that the defendant had invoked the jurisdiction of the court by submitting his motion, and it directed that defendant's motion be filed. It then considered both motions, denied that of defendant, and on plaintiff's motion modified the original decree by increasing the child support allowance from $35 per month to $60 per month.

From that order defendant appeals, contending that the court had no jurisdiction of him in that he had no proper notice or opportunity to be heard, amounting to a denial of due process of law. Defendant also contends that the modification was erroneous in that no material change of conditions was shown at the hearing.

Under ORS 107.130, the court in a divorce case has continuing jurisdiction over the subject matter of future support payments and retains the power to modify that portion of the decree. ² The fact that such modification is made upon motion in the original suit indicates that the court also retains jurisdiction over the parties as well as the cause. While it is perhaps unrealistic to speak of the divorce case as still 'pending' after a final decree, still it has such life that the decree can be modified, in certain respects, without commencing a new proceeding.

However, the fact that the court has jurisdiction over both the subject matter and the parties does not mean that it can act without further notice. If the modification order affects defendant's personal rights, due process requires that he have reasonable notice and an opportunity to be heard.

Thus in State ex rel. Hall v. Hall, 153 Or. 127, 55 P.2d 1102, an order modifying the support provisions of a divorce decree, without notice to the defendant, was held insufficient on which to base a judgment of contempt. In Bestel v. Bestel, 153 Or. 100, 108, 44 P.2d 1078, 53 P.2d 525, it was held that an order changing the custody of a minor child can only be made after notice and an opportunity to be heard. And in Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635, an order docketing arrears of alimony as a judgment, without notice to defendant, was held wanting in due process.

The Restatement of Conflict of Laws states the rule as follows:

' § 76. Continuation of Jurisdiction. If a court obtains jurisdiction over a party to an action, that jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action.

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'c. Change of circumstances. The original cause of action may involve matters of long duration, but jurisdiction still continues. A change in domicil of the parties or other changes in circumstances does not destroy the jurisdiction, but may lead the court in a reasonable exercise of discretion to refuse to exercise jurisdiction. In exercising the continuing jurisdiction, it may be necessary to give reasonable notice to an adverse party of new steps in the proceedings.'

In both the Hall case and the Griffin case, supra, it was said that in the absence of notice the court had no jurisdiction to make the order (153 Or. at page 129, 55 P.2d at page 1103; 327 U.S. at page 228, 66 S.Ct. at page 560). But since the required notice may be something less than would be needed to give personal jurisdiction at the commencement of the suit, ³ the question is not strictly one of jurisdiction but merely the adequacy of notice to warrant the court in exercising the jurisdiction which it has. In Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867, the court said, '* * * if a judicial proceeding is begun with jurisdiction over the person of the party concerned, it is within the power of a state to bind him by every subsequent order in the cause.'

At common law the authority of the attorney for the prevailing party continued after final judgment for a sufficient length of time to enable him to supervise its collection. Oregon has by statute authorized an attorney to satisfy a judgment or decree, upon receiving payment, within a period of three years after its entry (ORS 9.330). With respect to the losing party, however, the attorney-client relationship normally terminates with the entry of judgment or decree. DeVall v. DeVall, 57 Or. 128, 140, 109 P. 755, 110 P. 705. In general, see 5 Am.Jur. 322, Attorney at Law, § 102 et seq.; 7 C.J.S. Attorney and Client § 116, p. 948.

Much difficulty is presented by the question of whether a final decree can be modified after expiration of the term at which it was rendered, merely upon notice to the attorney who represented the adverse party at the time of the original decree. The cases elsewhere are divided, and there is no clear weight of decision.

The following cases have held that service on the attorney is not sufficient: Sandall v. Sandall, 57 Utah 150, 193 P. 1093, 15 A.L.R. 620; Moore v. Lee, Fla., 72 So.2d 280, 42 A.L.R.2d 1112; Scott v. Scott, 174 Iowa 740, 156 N.W. 834; Damm v. Damm, 77 R.I. 24, 72 A.2d 839 (for further explanation of the Damm case, see Hacking v. Hacking, 78 R.I. 325, 82 A.2d 168); Underwood v. Underwood, 142 Ga. 441, 83 S.E. 208, L.R.A.1915B, 674; Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282; Smith v. Smith, 171 Kan. 619, 237 P.2d 213 (during the same term); Commer v. Cummer, 283 Ill.App. 220; Ellis v. Ellis, 13 Neb. 91, 13 N.W. 29 (point waived by general appearance); Reynolds v. Reynolds, 12 Ohio App. 63.

On the other hand, the following cases have held service on the attorney to be sufficient: State ex rel. Groves v. First Judicial District Court, 61 Nev. 269, 125 P.2d 723; McSherry v. McSherry, 113 Md. 395, 77 A. 653; State ex rel. Jones v. Superior Court for King County, 78 Wash. 372, 139 P. 42; Kellogg v. Kellogg, 302 Ill.App. 604, 24 N.E.2d 260 (applying a court rule of the District of Columbia); Reynolds v....