In re the Marriage of Hill , 68 Or. App. 920 ( 1984 )

PER CURIAM

Wife appeals from the decree of dissolution and contests the property division and the amount of spousal support. We find no reason to disturb that decree. After the notice of appeal was filed, the trial court awarded temporary support pending the appeal, ORS 107.105(4),¹ and ordered that

“* * * [i]n the event the decree is affirmed on appeal, that the Decree is modified to exclude the spousal support of $400.00 for a period of two months * *

Wife also appeals from that order and argues that the trial court lacked jurisdiction to modify the decree after the notice of appeal is filed. ORS 19.033(1). We agree. Even though that portion of the order awarding temporary spousal support is not reviewable on appeal, it was not permissible to modify the decree. Accordingly, that portion of the order modifying spousal support “if the decree is affirmed” is void. See Nickerson and Nickerson, 296 Or 516, 521-23, 678 P2d 730 (1984).

Affirmed in part; order modifying decree is vacated. Costs to wife.

1 ORS 107.105(4) provides:

“If an appeal is taken from a decree of annulment or dissolution of marriage or of separation or from any part of a decree rendered in pursuance of the provisions of ORS 107.05 to 107.085,107.095,107.105,107.115 to 107.142,107.405,107.425, 107.445 to 107.520, 107.540 and 107.610, the court making such decree may provide in a separate order for the temporary child or spousal support or temporary custody and visitation, and attorney fees attributable to such order. The order may be modified at any time by the court making the decree appealed from and may be enforced by contempt proceedings under ORCP 78. The order may provide that the support money be paid in monthly instalments and shall provide that the order is to be in effect only during the pendency of the appeal. No appeal lies from any such temporary order.”

A court order providing temporary spousal support pending an appeal is not reviewable. Nickerson and Nickerson, supra.