Silliman v. Silliman

• Decision Date: 29 July 1913
• Citation: 66 Or. 402,133 P. 769
• Parties: SILLIMAN v. SlLLIMAN.
• Court: Oregon Supreme Court

133 P. 769

66 Or. 402

SILLIMAN v. SlLLIMAN.

Supreme Court of Oregon

July 29, 1913

Department 1.

Appeal from Circuit Court, Hood River County; W.L. Bradshaw, Judge.

Action by Annie L. Silliman against Lawrence Silliman. From a decree modifying the original decree for plaintiff, plaintiff appeals. Reversed.

This was a suit for a divorce brought by the plaintiff against the defendant. A divorce was granted to the plaintiff on March 22, 1912, and by this decree the court awarded to the plaintiff alimony amounting to $1,000 and expense money amounting to $150, besides costs and disbursements amounting to $233.30.

The plaintiff's complaint alleged, that the defendant owned in fee-simple certain real property in Hood River county containing 9 1/3 acres. In the findings of fact the trial court found that the defendant owned said real property but failed to decree one-third thereof to the plaintiff. The court gave her the $1,000 alimony and the $150 expense money in lieu of the one-third interest in the defendant's land.

On June 22, 1913, three months after the decree of divorce was entered, and after the adjournment of the term of the court at which said decree of divorce was rendered, the plaintiff filed a motion in the court below, asking that court so to amend said decree of divorce as to grant the plaintiff, in fee simple, an undivided one-third part of the real property of the defendant, referred to in the complaint and in the findings of fact. Said motion was heard by the court below and decided on July 18, 1912, and on that day the court made and entered an amended decree of divorce and by such amended decree granted to the plaintiff an undivided one-third of said real property, and at the same time so amended said decree as not to allow the plaintiff said $1,000 alimony, or any part thereof, or said sum of $150 or any part thereof, as expense money.

In the conclusions of law filed by the court in said suit on March 22, 1912, the court below did not find that the plaintiff was entitled to any part of said real property. The record fails to show that the defendant made any motion to have the original decree modified, so as not to allow the plaintiff any alimony or expense money.

The terms of the circuit court of Hood River county, as fixed by the laws of 1911 (page 213), began on the second Monday in January, first Monday in April, July, and October, annually. The original decree was entered before the beginning of the April term, and the motion for the amendment of the decree was filed after the April term, and the amended decree was granted and entered during the July term, 1912. The plaintiff has appealed from that part of the amended decree of divorce which so modified the original decree that the plaintiff was not entitled to any part of said alimony of $1,000 or any part of said $150 allowed in the original decree as "suit money."

E.H Hartwig, of Hood River, and S.H. Haines, of Portland, for appellant.

A.J Derby, of Hood River, and Bennett & Sinnott, of The Dalles for respondent.

RAMSEY J. (after stating the facts as above).

The plaintiff was entitled to a decree for an undivided one-third of the defendant's real property referred to in the complaint and in the findings of fact. Section 511, L. O.L.; Wetmore v. Wetmore, 5 Or. 469; Rees v Rees, 7 Or. 47; Houston v. Timmerman, 17 Or. 506, 21 P. 1037, 4 L.R.A. 716, 11 Am.St.Rep. 848. When the original decree was entered, a provision granting her said one-third interest in the defendant's land should have been incorporated into the decree. The trial court's conclusions of law failed to find that she was entitled to any part of the land. In the amended decree the court stated that she was given $1,000 alimony and $150 as "suit money" in lieu of the one-third of the land, but the original decree is silent on that point.

The plaintiff brought this appeal and asks that said portion of the amended decree which so modifies the original decree as not to allow the plaintiff any alimony or any "suit money" be reversed, and claims that the court below erred in so modifying said decree.

Section 514, L. O.L., authorizes the court, at any time after entering a decree of divorce to change or set aside any portion of the decree that provides for the care and custody of minor children or for their education or nuture or for the maintenance of either party. This power may be exercised at any time after a decree of divorce is granted on the motion of either party. But this section requires a motion to be filed, asking the court to make the change desired. There seems to have been no motion filed in this case by the defendant asking to have the decree modified so as not to allow the alimony, etc. But counsel for the defendant contends that as the court below allowed alimony and the "suit money" in lieu of the one-third interest in the defendant's realty, as the amended decree states, it was the duty of the court, when changing the original decree so as to grant the plaintiff one-third of the defendant's land, so to modify the original decree as not to allow the plaintiff any alimony or any "suit money." This position might be true, if the court had had jurisdiction to make the change in the decree in relation to the one-third interest in the land, but the court was without...