Matter of Marriage of Bull , 48 Or. App. 565 ( 1980 )

THORNTON, J.,

dissenting.

The majority holds that it is beyond the power of the court to impose an equitable lien for future child support on whatever the husband may recover for his injuries. I cannot agree.

ORS 107.105 provides:

"(1) Whenever the court grants a decree of annulment or dissolution of marriage or of separation, it has power further to decree as follows:

"(a) For the future care and custody, by one party or jointly, of all minor children of the parties * *

"(b) For the recovery from the party not allowed the care and custody of such children, * * * such amount of money, in gross or in instalments, or both, as may be just and proper * * *.”

ORS 107.405 provides:

"When a court is sitting in proceedings for annulment or dissolution of a marriage, or for separation, it shall have full equity powers.”

A divorce proceeding is governed by the principles and practices of equity. See 24 Am Jur 2d, Divorce and Separation 182, § 7 (1966).

A claim for future child support payments is in essence a claim on an unmatured obligation, and a court of equity may shape its decree and the enforcement of it in accordance with the general practice on unmatured and contingent claims, since there is a possibility of the child’s death before the expiration of the period prescribed for payments of support.

It is well established that a divorce court in the exercise of its broad equity powers may impound a fund from which future payments may be made for the support of the children of a divorced father. Also, it has been held that the court may award a lump sum in lieu of future payments. See 24 Am Jur 2d, supra, 950, § 838. A good example of this is found in Taylor v. Taylor, 47 Or 47, 81 P 367 (1905), where the court held that a lien for $6,500, the amount allowed by the trial court for the future care of the minor children, could be declared on all the real property of the spouse charged.

In Edelman v. Edelman, 65 Wyo 271, 199 P2d 840, 203 P2d 952 (1948), for example, it was held that the divorce court could direct the deceased father’s estate to pay into court such a lump sum as would enable the court to meet the child support payments due under the decree.

Similarly, in Cooley v. Cooley, 1 Or App 223, 461 P2d 65 (1969), this court held that the divorce court could require a father to maintain insurance for the benefit of the child.

In summary I submit that the majority is in error in holding that the trial court could not reach the proceeds of the father’s contingent personal injury claim and declare a lien thereon. I would remand to permit the trial court to reframe its decree as outlined above.

For the above reasons, I respectfully dissent.