Matter of Marriage of Eagen

PETERSON, J.,

dissenting.

Although ORS 107.135(2) prohibits a court from setting aside, altering or modifying a decree for installment payments of support provisions, I would hold, as did the Court of Appeals in this case, and as did this court in a previous decision, that “special considerations of an equitable nature may justify a court in crediting * * * payments [made directly to the children] * * * when that can be done without injustice to the * * * wife.” Briggs v. Briggs, 178 Or 193, 204, 165 P2d 772 (1946).

The decree in this case provides that the father was to pay “* * * through the Clerk of the Circuit Court for Clackamas County, Oregon City, Oregon, the sum of $150 per month as and for the support, care and maintenance of the minor child * * (Emphasis added.) The Court of Appeals found that “* * * the mother intentionally left her daughter with the father because the daughter might interfere with the traveling lifestyle mother chose to follow after the dissolution. Mother had, in fact, transferred the responsibility for the care and custody of the daughter to father. * * *” 52 Or App at 303. The Court of Appeals also *498found that “* * * the father has supported and maintained the child himself, a service performed for the mother which the evidence shows had a value of at least $150/month. Unless some statute prevents it, father is entitled to a partial credit of the judgment because, so far as equity is or ought to be concerned, he has paid it.” (Emphasis in original.) 52 Or App at 302.

The majority hold that “* * * the father’s obligation continued as long as the mother had legal custody of the minor child * * This conclusion is based upon the premise that allowing the father credit for the support actually provided “* * * would be, in effect, a retroactive modification of the custody and support provisions which is prohibited by ORS 107.135(2).” I disagree. I would hold that when a parent is given actual custody on a permanent basis, by the parent having legal custody, giving credit to the supporting parent is not an alteration, modification, or setting aside of a decree for the payment of money.

ORS 107.135(2) does not prohibit a payor from being given credit for monies paid pursuant to a decree. The Court of Appeals analysis on this point reflects fairness and equity; and its holding is squarely within the literal meaning of the statute. The Court of Appeals held:

«* * * Mother’s argument is based upon an incorrect premise. Despite her insistence, this is not a proceeding to ‘set aside, alter or modify’ a support order as described in ORS 107.135(2). The father here does not deny that he has had the support obligation. He is not asking that it be set aside, or altered, or modified. He is asking for an order that he be allowed a credit for child support during the lengthy period of time the child was living with him — that is, a recognition that the obligation was paid. * * *” (Emphasis in original.) 52 Or App at 302.

Our precedents suggest this result. In Briggs v. Briggs, 178 Or 193, 165 P2d 772 (1946), a decree required the husband to pay child support to the wife. While the children were in college, the husband paid money for the childrens’ education directly to the children. He claimed that he should be given credit for those amounts, against the amount due under the decree. We acknowledged the fact that the statute provides that each support installment of a decree becomes a final judgment until the filing of a *499motion to modify the decree. We stated, “Once the total amount which the defendant was required to pay has been computed, it will be necessary to determine the credits which the court of equity should allow to [the father].” 178 Or at 202, 203. We then concluded:

“The general rule is to the effect that, when a defendant husband is required by a divorce decree to pay to the plaintiff money for the support of the children and the unpaid and accrued installments become judgments in favor of the plaintiff, he cannot, as a matter of law, claim credit on account of payments voluntarily made directly to the children, though special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the plaintiff when that can be done without injustice to the plaintiff wife. Circumstances might also arise which would render it inequitable for the court to lend its aid in compelling the defendant to pay the same amount to the plaintiff which he had already expended in support of the children. * * *” 178 Or at 204. (Citations omitted.)

We held that the father was entitled to credit on his child support obligation for money paid directly to the children during the time they were in college.1

The majority rely upon Poe v. Poe, 246 Or 458, 425 P2d 767 (1967). That case is not in point. In that case, the husband obtained a divorce from the wife, and the decree required him to pay $15 per month as child support for each of two children. In 1952, he quit paying the child support payments. The wife raised the children. In 1966, the wife filed a motion for a judgment for the unpaid support payments. The husband then filed a motion to set aside the judgment, claiming that he quit making the payments at the wife’s request, and that she had made no effort, since 1952, to collect the support money, and that she now be estopped. Citing ORS 107.135(2), we affirmed the trial court, holding that that statute prohibited courts from modifying or changing support money payments once they have become a judgment. Poe is distinguishable. There, *500the husband provided no support and did not have custody of the children and was, in effect, seeking a retroactive modification.

The majority “* * * express no opinion concerning the availability of other collateral remedial relief such as proceedings to enjoin enforcement of the judgment.” In Mason v. Mason, 148 Or 34, 34 P2d 328 (1934), a decree provided that the mother would have custody of the children and receive monthly child support payments from the father. The mother subsequently abandoned the children, the husband took the children into his own custody and, as here, ceased paying any sums of money .to the wife. Years later the wife sought to collect the accrued child support. The husband brought a separate suit to enjoin the enforcement of the writ of execution which had been issued incident to the attempt to collect on the decree. The trial court dismissed the husband’s suit, and the husband appealed. On appeal, we reversed, saying:

“It is alleged in the complaint that, because of defendant’s actions in failing to perform the duties imposed upon her by the decree and her acquiescence in plaintiffs support of the children without making any monthly payments to her, amount to an estoppel. Whether that be true or not, it is not equitable that the plaintiff should now be required to pay to defendant the same or any moneys that he has already expended in the support of the children during the time that defendant was herself in default.” 148 Or at 43.

Compare: Chapman v. Chapman, 177 Or 239, 244, 161 P2d 917 (1945). I would do directly what the majority ultimately may approve indirectly.

Finally, I would add that the decree entered by the trial court in this case, as stated above, requires the husband to pay the sum of $150 per month to the clerk of the court. The evidence shows that, shortly after the husband received custody of the minor child, he went to the county clerk’s office and was advised by one of the deputies that he should write them a letter for the files and that he would no longer be “bothered” about the matter. The evidence shows that the husband discontinued the support payments with consent of the wife and the consent of the clerk.

*501The application of a rule of law to the limitless fact situations which come before courts occasionally results in decisions which are unfair and inequitable. This is such a case, doubly regrettable because the statute does not require it. In defense of the majority (who have neither requested a defense nor really need a defender), it is well to remember this statement of Lord Blackburn in River Wear Commissioners v. Adamson, 2 App Cas 742, 746 (House of Lords, 1877):

“But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious * *
Tongue, J., joins in this dissent.

Concededly, the holding is not a strong one for the position I espouse because the wife was apparently “willing to credit the [husband] on account of payments to the [children] while in college.” 178 Or at 203. The court concluded, however, that the husband should receive credit “[i]n view of the apparent consent of the plaintiff and the equities of the situation.” 178 Or at 207. (Emphasis added.)