Taylor v. Taylor
| Decision Date | 21 April 1914 |
| Citation | 140 P. 999,70 Or. 510 |
| Parties | TAYLOR v. TAYLOR. [d] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Clackamas County; J. A. Eakin, Judge.
Suit by Charles D. Taylor against Minnie N. Taylor to declare void a marriage contract for fraud. From an order granting defendant $8,665 as alimony, and $2,500 as attorneys' fees plaintiff appeals. Modified.
See also, 61 Or. 257, 121 P. 431, 964; 134 P. 1183.
John F. Logan and I. N. Smith, both of Portland, for appellant. Flegel & Reynolds, of Portland, for respondent.
On July 27, 1910, the plaintiff commenced a suit in the circuit court of Clackamas county to obtain a decree declaring void the marriage contract between the plaintiff and the defendant for alleged fraud. The parties were married in Portland, Or., on August 26, 1905. They lived together as husband and wife until November 20, 1909, but no children were born to them. The complaint charges that the defendant made to the plaintiff certain false and fraudulent representations as to her character and life, to induce him to marry her, and that he believed these representations, acted upon them, and married the defendant, etc. The defendant was a resident and inhabitant of the state of California, and the summons was served upon her by publication. After the expiration of the time allowed for answering, the plaintiff obtained a decree annulling said marriage contract. Within the time allowed by law for that purpose, the defendant applied to the court below for an order setting aside said decree, and permitting her to file an answer. This application was strongly opposed by the plaintiff; but the court below allowed said application, set aside said decree, and permitted the defendant to answer. From this order the plaintiff appealed to this court, and this court dismissed the appeal for the reason that said order was not appealable. See Taylor v Taylor, 61 Or. 257, 121 P. 431, 964.
On May 21, 1912, the defendant filed in the court below a motion asking for an order requiring the plaintiff to pay, or secure to be paid to the clerk of the court below, the sum of $7,000, to enable the defendant to defend said suit, and $2,500 for the support of the defendant during the pendency of said suit, and a like sum each month, since the filing of the defendant's former motion (on October 11, 1911), and for such other provision for the defendant's expenses in said suit, and for her support pending said suit, as to said court seemed just and equitable. The motion for alimony and expense money filed in October, 1911, does not appear to be in the record. The motion for an allowance for alimony and suit money was based upon the affidavits of the defendant, A. F. Flegel, R. Y. Williams, and J. M. Barlew, and upon the records in this case, and said motion was opposed by the affidavits of the plaintiff and John F. Logan and certain record evidence. On the 7th day of January, 1913, before the court passed on said motion for said allowances, the plaintiff filed in the court below a written motion for a decree of said court dismissing said suit. The court below heard said motion for an allowance for alimony and suit money, and the motion for the dismissal of said suit, at the same time, and allowed both motions in the same entry; but the motion for alimony and suit money was granted first, and the suit was dismissed immediately after said motion was allowed. Before said motions were heard, the attorneys for the defendant served on the attorneys for the plaintiff notice that the court below would hear the defendant's motion for alimony and suit money, and the motion of the plaintiff for a dismissal of said suit, together at the same time, at Oregon City, on the 10th day of January, 1913, at 7 o'clock p. m., and that the counsel for the defendant would then move the said court to allow the defendant alimony from the time of the filing of the first motion therefor to the date of the dismissal, and that the court allow counsel fees to the date of the dismissal, for services rendered by counsel for the defendant, and for money expended by said counsel in the defense of said suit, and that counsel for defendant would oppose the allowance of the motion for the dismissal of said suit until the granting of the motion for said allowances. On the 10th day of May, 1913, the court below granted said motion for alimony and suit money, and allowed to the defendant for her living expenses the sum of $5,665, and $3,000 to pay for a surgical operation. The total allowance to the defendant for said two purposes was $8,665; and the court allowed, also, at the same time, the defendant the additional sum of $2,500 for attorneys' fees in said suit, and then dismissed said suit. The total allowance for the defendant and her attorneys was the sum of $11,165. The case was not tried on its merits, and no decree was rendered dissolving or annulling the marriage contract.
1. The first question for consideration is whether the court below had authority to allow the defendant anything on said motion for her living expenses or for a surgical operation. The court below entered an order in her favor for $8,665 for said purposes. The defendant denies that the court below had authority to allow her anything for said purposes.
Section 512, L. O. L., is the only section of our statute that authorizes the court, before the final decree to require the husband in a suit for divorce or to have declared void the marriage contract, to make provision for the expenses of the suit, or for the maintenance of any one. It is as follows: "After the commencement of a suit, and before a decree therein, the court or judge thereof may, in its discretion, provide by order as follows: (1) That the husband pay, or secure to be paid, to the clerk of the court, such an amount of money as may be necessary to enable the wife to prosecute or defend the suit, as the case may be; (2) for the care, custody, and maintenance of the minor children of the marriage during the pendency of the suit."
Section 513, L. O. L., provides whet the court can do, when a final decree is rendered, declaring void or dissolved the marriage contract, and said section is as follows: "(1) For the future care and custody of the minor children of the marriage, as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault; (2) for the recovery of the party in fault, and not allowed the care and custody of such children, such an amount of money, in gross, or in installments, as may be just and proper for such party to contribute towards the nurture and education thereof; (3) for the recovery of the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other; (4) for the delivery to the wife, when she is not the party in fault, of her personal property in the possession or control of the husband at the time of giving the decree; (5) for the appointment of one or more trustees to collect, receive, expend, manage, or invest, in such manner as the court shall direct, any sum of money decreed for the maintenance of the wife or the nurture and education of minor children committed to her care and custody."
Section 511 L. O. L., provides that when a marriage shall be declared void or dissolved, the court shall grant to the person in whose favor the decree is rendered an undivided one-third part in fee of the real property owned by the other party.
Sections 7040 and 7041, L. O. L., authorize any married woman, whose husband is able to support her, but neglects to do so, to maintain a suit against him to obtain a decree compelling him to contribute to her support and the support of their minor children. The sections of our statute set out or referred to supra, are all of the statute law that we have relating to the questions in controversy in this suit.
Section 512, supra, is the only statutory provision that authorizes the court in which a suit for divorce is pending, before a final decree is entered, to require the husband to make any provision for the wife, or their minor children. In this case there are no children. Subsection 1 of said section 512 is the only part of said section that applies to this case. This subsection authorizes the court to require "that the husband pay or secure to be paid, to the clerk of the court, such an amount of money as may be necessary to enable the wife to prosecute or defend the suit, as the case may be." Under this subsection, the husband could be required to pay to the clerk a sufficient sum to cover attorneys' fees, witnesses' fees, and necessary expense of traveling in attending to the case; but it does not authorize the court to compel the husband to support the wife or pay surgical bills during the pendency of the suit. Possibly, the husband may be liable for such expenses, but payment thereof cannot be enforced under said section 512. The defendant never resided in this state. She resides in California, and the plaintiff may be liable under the laws of that state for her support, and for her surgical bills; but, as to that, we do not know.
It seems clear to us that section 512 confers no authority upon a court to compel the husband, during the pendency of a suit for divorce and before decree therein, to pay the wife alimony for her support or for medical or surgical attendance. In a suit brought by the wife for that purpose, courts of equity may compel the husband, in a proper case, to provide for her support; but relief of that sort cannot be obtained under section 512, supra.
Section 513, supra, applies to suits for divorce, when a decree is...
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