Opinion
Argued June 23, 1937
Affirmed June 29, 1937
Appeal from Circuit Court, Multnomah County, ARTHUR D. HAY, Judge.
Suit for a divorce by Josephine H. Norton against Fred Jensen, wherein a decree was rendered dissolving the marriage contract and providing for alimony and for the support of the minor children of the parties during their minority. From an order of the circuit court refusing to modify the decree of divorce respecting payment of support money for a minor child, Fred Jensen appeals.
AFFIRMED.
Jay H. Stockman, of Portland (Bradley A. Ewers, of Portland, on the brief), for appellant.
E.L. Kincaid, of Portland, for respondent.
This is an appeal from an order of the circuit court for Multnomah county refusing to modify a decree of divorce respecting payment of support money for a minor child.
It appears that a decree dissolving the marriage contract then existing between plaintiff and defendant was made and entered in the circuit court for Multnomah county, October 21, 1920. The parties were the parents of two minor children and the decree made certain provisions for alimony and for the support of the minor children during their minority. The alimony has been adjusted and satisfied between plaintiff and defendant. One of the minor children reached her majority during the year 1934. The other minor child, a son, is now in his nineteenth year.
On September 15, 1936, defendant filed a motion in the above cause asking the court to relieve him of any further payments of money to plaintiff for the support of his son on the grounds that plaintiff has been overpaid; that defendant is unable to further comply with the order on account of his financial and physical condition; and that the minor son is able-bodied and capable of earning his own livelihood.
This motion was supported by the affidavit and the supplemental affidavit of defendant. On November 15, 1934, after hearing, the court made and entered an order disallowing the said motion based on "the affidavits filed in support of and opposing to said motion, together with the testimony of the plaintiff and the arguments of counsel * * *".
The record brought to this court consists only of the motion, the affidavits of defendant in support thereof, and the order disallowing the motion. It appears that the testimony given in open court was not reported and transcribed. It also appears that plaintiff filed affidavits opposing said motion. None of the testimony and affidavits of plaintiff have been brought here.
Under this state of the record, this court can only affirm the judgment of the lower court. An appeal to this court from an equitable proceeding in the court below is "tried anew upon the transcript and evidence accompanying it.": Oregon Code 1930, § 7-510, and see the cases cited thereunder. Without such record, this court cannot determine that the action of the lower court was erroneous.
The decree of the lower court will be affirmed. It is so ordered.
BEAN, C.J., and BAILEY and RAND, JJ., concur.