Verburg v. Verburg , 8 Or. App. 524 ( 1972 )

495 P.2d 35 (1972)

Deane E. VERBURG, Appellant,
v.
Leonard W. VERBURG, Respondent.

Court of Appeals of Oregon, Department 2.

Argued and Submitted February 23, 1972. Decided March 23, 1972.

Timothy Heltzel, Portland, argued the cause for appellant. On the briefs were William E. Hurley, and Bernard, Hurley, Hodges & Kneeland, Portland.

John C. Anicker, Jr., and Jack, Goodwin & Anicker, Oregon City, filed the brief for respondent.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

PER CURIAM.

This is an appeal from an order of the circuit court modifying a decree of divorce by reducing the alimony provision in the divorce decree. The divorce decree was entered in June of 1967. In June of 1969 the matter came before the same trial judge who granted the divorce decree on defendant's motion for an order eliminating the alimony provision. The motion was denied and neither party appealed.

In August of 1971, the defendant again sought an order modifying the decree with respect to alimony. This motion was heard by a different trial judge. His order reducing (but not eliminating) the required alimony payments gives rise to this appeal. In so doing he relied upon events which had occurred prior to the 1969 hearing. This he had no authority to do.

Absent an appeal the order resulting from the 1969 hearing was final. The discretionary power of the trial judge in the instant hearing was limited to a consideration of any change of circumstances subsequent to the 1969 hearing. There were none.