In re the Marriage of Anderson , 102 Or. App. 169 ( 1990 )

GRABER, J.

pro tempore

The issues in this case are, first, the authority of an Oregon court when another state awards a valid status-only dissolution during the pendency of an Oregon dissolution case and, second, the correctness of the trial court’s property division and awards of child support and attorney fees. Husband asserts that the foreign dissolution deprived the Oregon trial court of subject matter jurisdiction over the issues that the foreign court was also without jurisdiction to decide. If the Oregon court did have jurisdiction, he asserts that the property division was too favorable to wife and that the awards of child support and attorney fees were excessive. We hold that the trial court had jurisdiction, modify the judgment to reduce the award of attorney fees, and affirm as modified.

Husband and wife lived in Newport until July, 1986, when husband took a job in California. Wife stayed in Oregon. Husband filed a dissolution action in California in early 1987 and served wife in Oregon in February, 1987. Wife did not appear in the California case. Instead, in June, 1987, she filed this action in Lincoln County. She did not serve husband until the end of October, after he had moved to Washington. Before then, on August 11, the California court entered a final judgment dissolving the marriage. Husband remarried a few days later. The California court reserved ruling on property and custody issues until December 28,1987, when it entered a final judgment on all issues. It declared that it was without jurisdiction over wife or the children. The only property that it believed that it had jurisdiction to divide was the parties’ 1986 federal income tax refund and husband’s California teacher’s retirement account. It did not assert jurisdiction to resolve any other custody, property, or support issues.

Husband registered the California judgment in Lincoln County. He also stipulated to the Oregon court’s personal jurisdiction over him in wife’s action, although he denied its subject matter jurisdiction over the support and property issues. The Oregon court divided the marital assets and awarded wife monthly child support of $325 for each of the three children and attorney fees of $7,500.

The initial question is whether the Oregon court had jurisdiction to decide the property and support issues after the California dissolution of the marriage.¹ Under the Full Faith and Credit Clause,² Oregon must recognize that dissolution as valid. However, it is not inconsistent with that clause for an Oregon court with personal jurisdiction over the parties to decide the property and child support issues that the California court could not. See Vanderbilt v. Vanderbilt, 354 US 416, 77 S Ct 1360, 1 L Ed 2d 1456 (1957). Whether an Oregon court has subject matter jurisdiction to decide those issues is a matter of Oregon law. See Rodda v. Rodda, 185 Or 140, 149, 200 P2d 616, 202 P2d 638, cert den 337 US 946 (1949).

ORS 107.115(1) provides, in pertinent part:

“A [judgment] of annulment or dissolution of a marriage restores the parties thereto to the status of unmarried persons, unless a party is married to another person. Such [judgment] shall give the court jurisdiction to award, to be effective immediately, the relief provided by ORS 107.105.”

ORS 107.105 allows a court to determine child custody, award child and spousal support, and divide the marital property. Under it, the court has authority to provide that relief “[w]henever the court grants a [judgment] of marital annulment, dissolution or separation^]” Husband argues that an Oregon court has jurisdiction under those statutes to decide those issues only when the Oregon court also dissolves the marriage. Because the California court dissolved the marriage before the Oregon court acted, he concludes, the Oregon court had no jurisdiction over the property division, child support, or attorney fees.

In Rodda v. Rodda, supra, the wife had obtained an Oregon decree of separate maintenance that required the husband to pay monthly support. The husband thereafter moved to Nevada and obtained a divorce in that state. The Nevada court did not acquire personal jurisdiction over the wife, and she did not seek a divorce in Oregon. After the Nevada divorce, the husband moved to vacate the decree of separate maintenance on the ground that the divorce had wiped it out. The Supreme Court affirmed the trial court’s order vacating the decree. The court held that, because the separate maintenance statute applied to “married persons,” it lost its effectiveness when the Nevada decree ended the marriage. 185 Or at 147-150. In discussing that conclusion, the court said:

“There are two sources of power in this state for the award of alimony, and only two so far as the prior decisions of this court go. One is the statute which authorizes an allowance of alimony to the party not in fault in a divorce suit * * *; the other is the separate maintenance statute. The first is alimony after divorce, but the award may be made only when the court grants a decree of annulment or dissolution of the marriage. * * * The second is alimony — termed maintenance — during the continuance of the marriage relation. And separate maintenance proceedings ‘being special and statutory, the court has only such powers as the legislature has granted it.’ ” 185 Or at 152-53. (Emphasis supplied.)

The statutes that the Supreme Court discussed in Rodda v. Rodda, supra, were Or Laws 1941, ch 408, § 7 (separate maintenance), and OCLA § 9-914 (divorce). The first granted power “[w]henever the court shall grant a decree of separation from bed and board, * * * further to decree as follows * * *.” The second granted the court power “[w]henever a marriage shall be declared void or dissolved * * * to further decree as follows * * The Supreme Court held that those statutes expressly conditioned the court’s subject matter jurisdiction over support, property division, and child custody on its primary power to grant a dissolution, annulment, or legal separation.

In Rodda, no Oregon court ever had the power to dissolve the marriage, because neither husband nor wife sought that relief in Oregon. The Oregon court had jurisdiction only over the wife’s action for separate maintenance, and that action lost its purpose when the husband obtained the divorce. In this case, in contrast, the Oregon court acquired jurisdiction over the parties’ status before the marriage was dissolved. As a result, when it was registered here, the California judgment became an Oregon judgment. The judgment gave the Oregon court “jurisdiction to award * * * the relief provided by ORS 107.105.” ORS 107.115. ORS 107.105(1) grants the court power whenever it grants a judgment of dissolution. ORS 107.115, on the other hand, states the effect of a judgment of dissolution in more general terms and provides that such a judgment gives the court power to award the relief provided in ORS 107.105. It thereby gives the court authority to grant that additional relief in a pending case whenever the marriage is dissolved, even if a court of a different state grants the dissolution. ORS 107.115, therefore, expands the circumstances in which the court may grant the relief that ORS 107.105 provides. The Rodda court had no reason to consider the effect of a concurrent Oregon case on the trial court’s jurisdiction, and its holding, therefore, does not control in these circumstances. Because the California court was without jurisdiction to decide the non-status issues, no rules of res judicata or collateral estoppel limit the Oregon court’s authority over those matters. The trial court had jurisdiction to grant any supplemental relief that is available under ORS 107.105.

Having determined that the trial court had subject matter jurisdiction, we turn to the merits of husband’s arguments. We affirm the court’s property division without discussion. Husband’s support obligation totals $975 per month, which is more than half of his net income. On the other hand, child care expenses alone take more than half of wife’s earnings, which are significantly lower than husband’s. We accept the court’s finding that each child’s need, including child care costs, is $450 per month. The court properly considered the factors discussed in Smith v. Smith, 290 Or 675, 626 P2d 342 (1981), and we do not think that any change that we might make would be clearly better.³ On de novo review, however, we apply the factors in Craig and Craig, 30 Or App 419, 567 P2d 141 (1977), and conclude that the award of attorney fees was excessive. We reduce that award from $7,500 to $2,500.

Judgment modified to reduce award of attorney fees to wife to $2,500; affirmed as modified. No costs to either party.

1 Wife argues that the California dissolution is void or voidable, but the ground for that argument, as it relates to marital status, is not clear. So far as the record shows, husband was a resident of California when he filed the action, and wife was properly served in Oregon. The California court, therefore, had jurisdiction to dissolve the marriage. See Williams v. North Carolina, 317 US 287, 63 S Ct 207, 87 L Ed 279 (1942).

2 Article IV, section 1, of the United States Constitution provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

3 We do not apply the new child support guidelines, because the trial court entered its judgment before October 3, 1989. Butcher and Butcher, 100 Or App 476, 786 P2d 1293, rev den 310 Or 70 (1990).