Opinion
Argued January 19, 1928
Affirmed February 7, 1928 Rehearing denied April 3, 1928
From Multnomah: LOUIS P. HEWITT, Judge.
AFFIRMED. REHEARING DENIED.
For appellant there was a brief and oral argument by Mr. Ira W. Carl.
For respondent there was a brief and oral argument by Mr. H.M. Isaacs.
This is a suit for separate maintenance. The parties were married in Ashland, Oregon, March, 1900. No children were born as a result of the marriage, but, in November, 1912, be it said to their credit, they duly adopted a baby boy and named him Franklin Reeves Wertz. Plaintiff for some time prior to her marriage had been a teacher of music in the Ashland Normal School. From the record it appears that she is a refined and cultured woman. Defendant for several years has been employed in the railway mail service and earns $230 per month. In June, 1924, on account of marital difficulties, a separation occurred. Defendant removed nearly all of his personal effects from his home and continued to live separate and apart from his wife. In October, 1924, the husband commenced divorce proceedings in Multnomah County, Oregon, charging plaintiff herein with cruel and inhuman treatment. Upon hearing, this proceeding was dismissed. The instant suit was commenced in January, 1925. A decree was rendered that the husband pay the sum of $80 per month for the support and maintenance of his wife and the minor child, whose care and custody was awarded to plaintiff. It was also decreed that defendant pay the sum of $150 for attorney's fees. From this decree defendant has appealed.
There are many legal niceties discussed relative to the status of the pleadings in this case, but we prefer to pass to the merits of the controversy. We think it is established by the greater weight of the evidence that the defendant, without just cause and without fault on the part of the plaintiff, left the home of his wife in June, 1924, and ever since has failed and refused to contribute to her support, although he has regularly paid each month the sum of $40 for the support and maintenance of the child. We see no good that can be subserved by taking space in the reports to recite the details of this shattered romance. The trial judge's disposition of this cause meets with our approval.
The contention that defendant is not legally obliged to provide for the maintenance of a child by adoption is wholly without merit. By virtue of Section 9772, Or. L., this child has the same legal status as if it had been born to them during lawful wedlock. It would be a monstrous doctrine to announce otherwise.
Defendant complains of the allowance of attorney's fees in a proceeding of this nature. Section 9751, Or. L., provides that in such suits the practice "shall conform as nearly as may be to the practice in divorce cases," and that "after the commencement of such suit and before decree therein the court or judge thereof may, in its discretion, on motion of the plaintiff, issue an order requiring a defendant to conform to any of the provisions of Section 512." Referring to Section 512, we find it is provided "that the husband pay or secure to be paid * * such an amount of money as may be necessary to enable the wife to prosecute or defend the suit * *." Appellant relies upon Therkelsen v. Therkelsen, 35 Or. 75 ( 54 P. 885, 57 P. 373), but this decision was rendered prior to the amendment of Section 9751, Or. L., in 1905, and is no longer decisive of the question under consideration. See Taylor v. Taylor, 70 Or. 510 ( 134 P. 1183, 140 P. 999).
No question of res judicata is involved.
The decree of the lower court is affirmed.
AFFIRMED. REHEARING DENIED.
RAND, C.J., and BEAN and BROWN, JJ., concur.