Opinion
D8003-61836; CA A26092
Argued and submitted March 4, 1983
Reversed and remanded May 11, 1983
Appeal from Circuit Court, Multnomah County, Stephen B. Herrell, Judge.
Diane C. Brock, Portland, argued the cause and filed the brief for appellant.
William E. Cady, Portland, pro se, waived appearance for respondent.
Before Richardson, Presiding Judge, and Van Hoomissen and Newman, Judges.
VAN HOOMISSEN, J.
Reversed and remanded with instructions to vacate the judgment and to enter a new judgment ordering husband to pay $650 spousal support due July 1, 1982. Costs to appellant.
Wife appeals from a judgment order entered on a controversy submitted pursuant to ORCP 66. The trial court allowed husband to pro-rate his monthly support payment as of the date that wife remarried. The issue is whether wife was entitled to payment of spousal support for the full month in which she was remarried.
The parties were divorced in 1981. Their decree provides that (1) husband pay wife as spousal support the sum of $650 monthly for two years and $450 monthly for one year, (2) spousal support commence on May 1, 1981, and be due on the first of each month thereafter and (3) spousal support automatically terminate on wife's remarriage.
This provision is not in issue in this proceeding.
On July 1, 1982, wife was single. Spousal support was not paid on that date. On July 2, 1982, wife remarried. The trial court concluded that husband was entitled to pro-rate the July, 1982, payment as of the date of wife's remarriage. We disagree.
The support payment at issue was due and payable on July 1, and a judgment accrued as of that date. ORS 107.135 (2) provides in relevant part:
"The decree is a final judgment as to any instalment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money * * * [for] the support of a party, which has accrued prior to the filing of such motion. * * *"
Wife was single on July 1. She was therefore entitled to payment of spousal support for the entire amount that was due on that date, i.e., $650.
Reversed and remanded with instructions to vacate the judgment and to enter a new judgment ordering husband to pay $650 as spousal support due on July 1, 1982. Costs to appellant.