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Osterholme v. Osterholme

April 16, 1973

OSTERHOLME, RESPONDENT,
v.
OSTERHOLME, APPELLANT



Appeal from Circuit Court, Clatsop County. Donald L. Kalberer, Judge.

Nicholas D. Zafiratos, Astoria, argued the cause and filed the briefs for appellant.

Hayes Patrick Lavis, Astoria, argued the cause for respondent. With him on the brief were Anderson, Fulton, Lavis & Van Thiel, Astoria.

Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.

Thornton

Defendant husband appeals from the denial of his motion to terminate, or modify, the alimony payments required of him under a divorce decree.

The parties to this appeal were divorced in 1968. The decree ordered the defendant to pay "$100.00 per month by way of alimony for a period of ten years and one month * * *."

On January 19, 1972, defendant filed his motion to modify the decree by deleting the alimony requirement. In his supporting affidavit, the defendant asserted a material deterioration in his financial position resulting from a loss in pay, and from his remarriage. He also alleged an improvement in plaintiff wife's situation deriving from a $31,000 condemnation award paid to her by the state.

On April 24, 1972, two days before the hearing date set for the condemnation motion, the plaintiff wife filed a motion seeking to hold the defendant in contempt for failure to pay alimony.

At the modification hearing the plaintiff attempted to defend against the modification by introducing

evidence of defendant's alimony payment delinquencies. Plaintiff's attorney maintained that he was proceeding under the motion for contempt, although this motion was not accompanied by an affidavit, as required by statute, ORS 33.040, and although the trial judge had apparently never seen the motion prior to the hearing.

The trial court offered to set a later hearing date for the contempt motion, but plaintiff continued to urge the delinquent alimony evidence. Defendant consistently objected to any testimony on alimony arrearages, and the trial court sustained the objections, excluding all such evidence. Plaintiff, however, preserved the record on alimony payments through an offer of proof.

After the hearing, the trial court denied the motion to modify. Although the court had excluded all evidence concerning delinquencies in alimony payments, the court relied on this evidence in refusing modification. In a letter to counsel for the parties, directing the preparation of the order, the court said that the decree "could be modified," but that "it ...


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