Wiles v. Wiles

• Decision Date: 06 September 1957
• Parties: Glenna Ellene WILES, Appellant, v. Eugene F. WILES, Respondent.
• Court: Oregon Supreme Court

Page 131

315 P.2d 131

211 Or. 163

Glenna Ellene WILES, Appellant, v. Eugene F. WILES, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 5, 1957.

Decided Sept. 6, 1957.

E. B. Sahlstrom, Eugene, argued the cause for appellant. On the brief were Thompson & Sahlstrom, Eugene.

Russell R. Niehaus, Portland, argued the cause for respondent. With him on the brief were Milligan & Brown, Eugene, and Wheelock & Richardson, Portland.

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

WARNER, Justice.

In October, 1948, the plaintiff-appellant, Glenna Ellene Wiles, filed a suit for divorce from the defendant-respondent, Eugene F. Wiles, in Lane County, Oregon. Her complaint also asked for an allowance for the support of the two minor daughters of the parties. At that time, the defendant was a law student at the University of Idaho and a resident of that state. From the record we learn that service of the summons and complaint was had upon him on November 1, 1948, in Moscow, Idaho. He ignored this out-of-state service and entered no appearance in the pending suit. On September 1, 1949, plaintiff secured her divorce from defendant; and, notwithstanding the want of personal service on the defendant, the decree directed him to pay his former wife the sum of $25 per month for the support of each of the two minor children and $125 as attorney fees and plaintiff's costs.

By August 12, 1954, these money allowances on the face of that decree had cumulated to $3,110. On that date on plaintiff's ex parte motion in the divorce suit, she was given judgment for that amount and execution was issued on the judgment the day following its entry.

In the interim, that is between the date of the entry of the decree and the entry of the judgment on August 12, 1954, defendant attended the law schools of the University of Idaho and the University of San Francisco, and was admitted to practice law in Oregon in September, 1952. Sometime after that he established his residence in Portland, Oregon, where he was employed by the U. S. Department of Interior with a 'net salary' of $4,000.

On the twenty-fourth day of November, 1954, the defendant moved to set aside the judgment of August 12, 1954, upon the ground that the court had no jurisdiction over the defendant because of the want of personal service on him in Oregon prior to September 1, 1949.

Two days later, i. e., on November 26, 1954, the defendant filed a separate motion for an order modifying the decree of September 1, 1949, in the following particulars: (1) to allow him a right to visit his children at times and places determined by the court; (2) to increase his obligation to support his daughters from $25 per month to $40 per month for each child; and (3) restraining the plaintiff from removing the children from the state of Oregon without specific authorization of the court.

On the same date, he also filed a motion for an order recalling the execution issued on the judgment, dated August 12, 1954, and restraining the issuance of any further execution based thereon.

Thus, there were three motions of the defendant before the court when it made its order for the plaintiff to appear on December 13, 1954, to show cause with respect to the relief sought by these several motions.

The plaintiff responded with a countermotion for an allowance of $100 per month for the support of each child and a further allowance of $300 as attorney's fees in the proceeding from whence this appeal comes. At the same time plaintiff filed a reply in denial of the allegations of defendant's affidavits filed in support of his several motions, and also a petition which prayed that in the event any portion of defendant's motions to set aside the judgment or modify the decree are allowed that plaintiff be given an award of $100 for each and every month for the support of 'each of the two children of the parties retroactively to the time of the entry of the decree in this case on September 1, 1949, together with a reasonable attorney's fee and court costs * * *.'

A hearing on all of the issues thus framed resulted in an order on December 30, 1954, which: (1) set aside and vacated the money judgment of August 12, 1954; (2) withdrew and cancelled the execution issued pursuant to that judgment; (3) declared null and void the provisions of the divorce decree of September 1, 1949, providing for payment of support money, attorney's fees and costs; (4) modified the divorce decree by directing: (a) defendant to pay plaintiff $45 per each calendar month for the support of each of his children, commencing with the month of December, 1954, with a credit upon such amounts as the Veterans' Administration might pay from any pension or benefits of the defendant; (b) provided for the visitation of the children by their father; and (c) prohibited the removal of the children from the state by either parent without the consent of the court first obtained; (5) granted an allowance of $50 to plaintiff as attorney's fees; and (6) otherwise the several motions of the parties were dismissed.

The plaintiff appeals from this order.

No issue is raised concerning the character of service made upon defendant in the state of Idaho in November, 1948, nor does plaintiff claim any validity for that part of the decree prior to November 24, 1954, requiring the defendant father to pay support money for his children. These concessions are appropriately made for it has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. The classic case attesting the rule is Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

Plaintiff contends, however, that by reason of the defendant's subsequent appearance, which she asserts constituted a general appearance in the suit by reason of his motions filed November 24, 1954, the defect of service is cured by rendering valid the money judgment provisions of the original decree of September 1, 1949, and subsequent judgment rendered thereon in August of 1954. In other words, argues the plaintiff, such appearance by defendant in November, 1954, operated retroactively to reinstate the money features of the decree with the same force and effect as if the defendant had made a general appearance in the divorce prior to September 1, 1949, the date of the decree in controversy. But we do not think so for the reasons which follow.

Whether the defendant's motion to vacate the judgment constitutes a general or special appearance is rendered moot in view of his subsequent motion to modify certain provisions respecting his future obligations to the children and his request for provisions enlarging his opportunities to visit them. By the later motion, he submitted to the jurisdiction of the court.

But when one moves to vacate a decree void on its face as a futile attempt at a judgment in personam, even if the motion be by a general appearance, it will not infuse a void judgment with the vitality which it lacks. 'The judgment, if void when rendered, will always remain void; * * * the validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently.' Pennoyer v. Neff, supra (24 L.Ed. 570-571). The validity of a judgment is determined as of the date of its rendition and, if void, it remains so forever. In re Hanrahan's Will, 109 Vt. 108, 194 A. 471, 478; 49 C.J.S. Judgments § 451 p. 882; 31 Am.Jur. 92, Judgments, § 431. Nor is a judgment ratified by moving to set it aside, or thus made better or worse. Langston v. Nash, 192 Ga. 427, 15 S.E.2d 481, 484; Martin v. Cobb, 77 Tex. 544, 14 S.W. 162, 163. Even the fact that a former husband, without excepting to the original judgment, had paid money in pursuance of the judgment for several years, cannot affect the result. Langston v. Nash, supra (15 S.E.2d 484).

It is this very absence of vitality in a void judgment from the moment of its rendition that tends to explain why defendant's appearance in the matter, be it called general, cannot operate retroactively to give it life. A void judgment has been variously and picturesquely described many ways as wanting in any value or substance which can be revived. It has been termed: 'mere waste paper.' Commander v. Bryan, Tex.Civ.App., 123 S.W.2d 1008, 1015; 'the mere image of a judgment.' Western Pattern & Manufacturing Co. v. American Metal Shoe Co., 175 Wis. 493, 185 N.W. 535, 536, 20 A.L.R. 264, cited in Finch v. Pacific Reduction & Chemical Mfg. Co., 113 Or. 670, 673, 234 P. 296. In White v. Ladd, 41 Or. 324, at page 330, 68 P. 739, at page 741, this court, using the words of others, refers...