Stephens v. Stephens

• Decision Date: 13 January 1943
• Citation: 170 Or. 363,132 P.2d 992
• Parties: STEPHENS <I>v.</I> STEPHENS ET AL.
• Court: Oregon Supreme Court

170 Or. 363

132 P.2d 992

STEPHENS

v. STEPHENS ET AL.

Supreme Court of Oregon.

Argued November 17, 1942.

Reversed January 13, 1943.

Rehearing denied February 9, 1943.

Divorce

1. Where wife obtained divorce from plaintiff husband and custody of the parties' minor child was awarded to wife's sister, and husband failed to make specified monthly payments required to be made to sister for the child's support, husband was entitled to notice of sister's motion to renew the judgment for balance due on accrued instalments.

Appearance

2. Husband's motion to vacate order renewing, for balance due on accrued instalments, judgment requiring him to make specified monthly payments for support of his minor child, was a "general appearance", notwithstanding that motion had been designated as a special appearance, and hence husband could not complain of lack of notice of motion to renew judgment.

Divorce

3. On motion to renew, for balance due on accrued instalments, judgment requiring husband to make specified monthly payments for support of his minor child, husband was entitled to show that the judgment had been paid in full or in part.

Divorce

4. Where wife obtained divorce from plaintiff husband and custody of the parties' minor child was awarded to wife's sister, and husband failed to make specified monthly payments required to be made to the sister for the child's support, sister was the "real party in interest" entitled to move for renewal of judgment for balance due on accrued instalments.

Statutes

5. The statute authorizing renewal of judgments before expiration of ten years after entry thereof was required to be read with statute providing that a decree with reference to care of minor children shall be a final judgment as to any accrued instalment.

Divorce

6. Under statute providing that with reference to care of minor children, a decree shall be a final judgment as to accrued instalments, divorce decree requiring payment by husband of specified monthly instalments for support of the parties' minor child did not become a "final judgment" until an instalment accrued, and as each instalment accrued it became a separate "judgment" upon which execution could issue.

Divorce

7. A motion to renew decree requiring husband to make specified monthly payments for support of the parties' minor child was timely, notwithstanding lapse of more than ten years from date of decree, where motion was made within ten years from accrual of first unpaid instalment.

                  See 31 Am. Jur. 342 et seq
                  27 C.J.S., Divorce, § 321
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Tillamook County.

R. FRANK PETERS, Judge.

Action by B.J. Stephens against Verna L. Stephens for divorce. Divorce was decreed for defendant and custody of the parties' minor child was awarded to Rose Wilkes, and plaintiff was ordered to pay $25 monthly to Rose Wilkes for support of the child. Rose Wilkes moved the court to renew the judgment for a balance of $2,653.83 and motion was allowed and judgment was entered. Plaintiff moved to set aside and vacate the judgment renewal order. From an order vacating the order of renewal of judgment, Rose Wilkes appeals.

REVERSED. REHEARING DENIED.

George A. Rhoten, of Salem (Rhoten & Rhoten and Sam F. Speerstra, all of Salem, on the brief), for appellant.

H.T. Botts, of Tillamook, for respondent.

BELT, J.

On April 6, 1929, the defendant Verna L. Stephens, in the circuit court of Tillamook county, obtained a decree of divorce against her husband, the plaintiff herein, on the ground of cruel and inhuman treatment. In accordance with the stipulation of the parties, the decree awarded to Rose Wilkes, appellant herein, the custody of the minor child, then 10 years of age. Rose Wilkes, who resides in Salem, Oregon, is a sister of Verna L. Stephens. It was also decreed that plaintiff pay to Rose Wilkes the sum of $25 per month for the care and support of his minor son.

On May 7, 1941, Rose Wilkes moved the court for an order based upon her affidavit, "renewing that certain judgment heretofore made and entered against the plaintiff in the above entitled court and cause, and causing a new entry of the same to be made in the judgment docket showing a total sum of $3,285.83 as having accrued on account of said judgment, with satisfaction thereon in the sum of $632.00, and leaving a balance now due and owing thereon in the sum of $2,653.83." Affiant averred that the child remained in her custody until he reached the age of twenty-one years, and that no part of said sum has been paid, save and except the sum of $632.00, and there is now due and owing on account thereof the sum of $2,653.83."

On May 7, 1941, the court allowed said motion and entered a judgment in accordance therewith.

On July 18, 1941, plaintiff filed a motion — designated by him as a special appearance — to set aside and vacate the order purporting to renew the judgment as above stated for the following reasons:

"1. Such order is not and was not authorized to be made by law.

"2. Said order was made without notice to plaintiff or to any other persons.

"3. Said order was not applied for by either of the parties to this cause.

"4. Said order is void because not made in pursuance of any authority granted by law."

On August 11, 1941, the court allowed the motion of plaintiff and vacated the order of renewal of the judgment for the reason "that the original judgment in this case having been entered on April 6, 1929, and not having been renewed, it automatically expired on April 6, 1939, under the provisions of Section 6-802 O.C.L.A." From the order of vacation Rose Wilkes appeals.

1-4. We agree that plaintiff was entitled to notice of the motion to renew the judgment for a definite sum representing the balance due on accrued instalments but, since his motion to vacate the order of renewal constituted a general appearance, he cannot now complain. In opposition to the application for renewal of judgment, the plaintiff had the right to show, among other things, that the judgment had been paid in full or in part: 34 C.J., pp. 663-669; Freeman on Judgments (5th Ed.) § 1103. It is observed, however,...