Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.
Charles Robinowitz, Portland, argued the cause and filed the briefs for appellant.
Edwin J. Welsh, Portland, argued the cause for respondent. With him on the brief were Welsh & O'Donnell, Portland.
Thornton, Judge. Schwab, Chief Judge, specially concurring. Fort, Judge, joins in this specially concurring opinion.
Defendant wife appeals from certain provisions of a divorce decree granted to plaintiff husband.
Defendant contends that the trial court erred:
(1) In applying the provisions of the "old" divorce law, former ORS ch 107, rather than those of the new "no-fault" law, ORS ch 107;
(2) In granting custody of the parties' minor child to the husband;
(3) In awarding the wife what she believes to be insufficient support;
(4) In dividing the property of the parties; and
(5) In denying costs and attorney's fees to the wife at trial.
She also seeks costs and attorney's fees on this appeal.
The history of this marriage, except as relevant to specific assignments of error and set out below, need not be detailed. The parties were married for some 27 years. Two children were born to the marriage, Sharon, age 18, and David, age 23. Apparently the relationship between plaintiff and defendant was frequently strained, and during the last years of the marriage the wife allegedly became interested in another man.
The plaintiff filed his complaint in this case on September 23, 1971. The "no-fault" divorce law became effective on October 1, 1971. Oregon Laws 1971, ch 280, § 29.
The defendant sought to invoke the provisions of the new law through a second amended answer and
counterclaim. The trial court denied the motion to file this pleading. Again, immediately before trial, the defendant urged the court to follow the "no-fault" law, and the court refused, believing the former law to be applicable in the case.
After an initial amendment to the pleadings, which is allowed of course, ORS 16.370, further amendments sought before trial may be granted if "in furtherance of justice," ORS 16.390. Certainly, reference to the appropriate law at trial is "in furtherance of justice," and the amendment should have been allowed if the new divorce law is, in fact, properly applicable to this case. See Perdue v. Pac. Tel. & Tel. Co., 213 Or 596, 326 P2d 1026 (1958).
Two cases previously before this court have involved factual situations parallel to that here, with divorce complaints filed before the effective date of the new law, and trial occurring after that date. In one of those cases the trial court followed the new law. Minovsky v. Minovsky, 10 Or App 540, 543, 500 P2d 1234 (1972). In the other, the trial court applied the former law. Ray v. Ray, 11 Or App 246, 502 P2d 397 (1972). However, in neither case did this court rule on the propriety of the law relied on by the trial court.
In both Minovsky and Ray we noted that our decision would be the same under either the old or the new law. Here the situation is different. At least as to one issue raised on this appeal, the result is clearly dependent on the choice of the properly applicable law. Under the former statute, ORS 107.030, the prevailing party, Mr. Morgan, would be awarded the divorce, while under the new statute, ORS 107.036(4), ...