Doyle v. Doyle ( 1974 )

THORNTON, J.,

specially concurring.

In view of Wiles v. Wiles, 211 Or 163, 315 P2d 131 (1957), I am compelled to concur in the result.

Wiles is, however, distinguishable on the facts from the case at bar in some respects. For example, in Wiles the defendant was not guilty of unclean hands, nor had he remarried.

Divorce suits are treated as matters in equity. Cookson v. Cookson, 246 Or 118, 424 P2d 218 (1967). Defendant has come into court seeking equitable relief. It seems to me that where, as here, a husband and father leaves his child of tender years and knowingly permits his child to be supported by his former wife over a period of some 13 years, and during that time he remarries, he should be held to have come into court with unclean hands, and should be estopped from deleting the financial provisions of the decree. Attebery v. Attebery, 172 Neb 671, 111 NW2d 553 (1961).

One should not be able to accept the privileges which a divorce decree confers (remarriage) and at the same time escape the burdens imposed. State of Tennessee v. Barton, 210 Ark 816, 198 SW2d 512 (1947). See also, 24 Am Jur2d 587, 616, Divorce and Separation 464, 491.