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In re Dissolution of Marriage of Schunk

July 16, 1973

IN THE MATTER OF THE DISSOLUTION OF THE MARRIAGE OF SCHUNK, RESPONDENT, AND SCHUNK, APPELLANT


Appeal from Circuit Court, Clackamas County. Dale Jacobs, Judge.

Anne K. Schneider, Oregon City, argued the cause for appellant. With her on the briefs were Santos & Schneider, Oregon City.

Thomas Sauberli, Portland, argued the cause for respondent. With him on the brief were Vergeer, Samuels, Roehr & Sweek, Portland.

Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.

Langtry

Respondent-wife in a divorce proceeding appeals from a decree dissolving the marriage. She alleges (1) that the court erred in granting the petitioner-husband a divorce from her, (2) that the court abused its discretion in its distribution of the property and (3) that she was not accorded due process of law by the trial judge. The case was filed in December 1970 under the divorce law then applicable in Oregon. At that time the wife was 37 years old and had been married five times, twice to the same man. Husband then was 23 and this was his first marriage. There were no children, but wife had three by a former marriage. The case was heard on August 25 and September 20, 1972 under a ruling that proceedings would be had under the "no fault" divorce law (ORS 107.025 et seq.) which became effective during the interim between 1970 when the case was filed and 1972 when it was heard. The respondent-wife made no objection to this ruling at the time it was made, specifically stating that she would not take "a position" with reference thereto. She was represented by her second attorney on trial and has her third for this appeal.

(1). In her brief she now contends that the court awarded the decree to her husband which is impermissible

under the no fault law. A letter written to counsel by the trial judge after the case was over stated:

"The first provision that may be provided for in the decree is an easy one, to-wit; the plaintiff may be awarded a decree of divorce from the defendant." (Emphasis supplied.)

However, the first provision of the formal divorce decree signed by the trial judge provides:

"(1) The marriage of the parties shall terminate on the 13 day of Dec., 1972 * * *."

This decree states the action of the court. Beardsley v. Hill, 219 Or 440, 442, 348 P2d 58 (1959):

"It was contended by plaintiff * * * that the letter was an appealable order * * *. This is not in accord with Barone v. Barone, 207 Or 26, 294 P2d 609, and Ernst v. Logan Oldsmobile Co., 208 Or 449, 302 P2d 220. The memorandum opinion of the court, in the form of a letter, was not an order * * *. The cases cited hold, and we consider it to be an important rule of orderly practice, that a memorandum opinion of the trial court does not become effective until it is ...


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