In Re the Dissolution of the Marriage of Vann

LANGTRY, J.

Husband appeals from the denial of his motion to eliminate support payments for wife. The original decree was in September 1973. Among other things the decree provided that wife should be paid $125 per month support for a period of five years. The parties had been married for 25 years and at the time of their marriage wife was 16 years old and untrained for any occupation. The purpose of the support payments was to aid her for five years while she sought to improve her earning capacity.

The motion for elimination of the support payments was made in February 1975. The husband alleged changed circumstances in that his income had deteriorated since the time of the original decree, and his former wife was gainfully employed and living with a man to whom she was not married and providing him with living necessities.

At the hearing evidence was taken concerning husband’s present income, compared with the income which he had in 1973 and years immediately prior thereto. Our perusal of the record indicates that the trial court correctly concluded " [t]hat the [husband’s] income, although it has varied somewhat, is not substantially less than it was at the time of the original * * * Decree.”

If there was a change of circumstances, justifying the motion, then, it was necessarily related to the allegations concerning wife’s affiliation with the man allegedly living with her. In this regard the trial court found that wife had been living with the other man and had been paying the rent "and essentially supporting herself and that this relationship is about to terminate.”

Three witnesses testified concerning the living situation which was the basis for these findings. One was the wife and the others were her grown daughter and son-in-law. From this evidence we conclude that the trial cburt’s findings mentioned above are correct. The other man was getting free rent and at least substantial free food paid for by wife and he was paying for all entertainment and several trips that wife and he had made together. However, the evidence also was that the other man had purchased other property to which he was going to move and that wife was not going to accompany him — in other words, this evidence indicated that their relationship as housemates was about to end. That the trial judge who heard the evidence believed this is evidenced by his statement in "Decision Denying Motion” that the other man "is about to move out and obtain other quarters * *

Wife testified that in spite of her efforts to find full-time employment she has obtained work as a waitress only for half days five days a week. Her salary and tips amount to about $250 a month. She is striving to make her employment full time.

In 1971 Oregon adopted the so-called "no-fault” marriage dissolution law declaring that " [t]he doctrines of fault and of in pari delicto are abolished in suits for * * * dissolution of a marriage * * The Act also provides that " [t]he court shall not receive evidence of specific acts of misconduct * * *.” ORS 107.036(1) and (2). The Oregon Criminal Code of 1971 (ORS 161.005 et seq.) does not define as offenses such acts as adultery, fornication and lewd cohabitation.¹

Therefore, we conclude that we may not deprive wife of the support payments previously ordered solely because of the living arrangements that were demonstrated to have existed. If the proof of the same living situation were also proof that she was not using the support money substantially for the purpose for which it was intended or that she had sufficient other income so that she no longer needed the support money, the result might well be different. At bar, however, we conclude, as did the trial court who saw and heard the witnesses, that the relationship with the other man was drawing to a conclusion and that the reasons for the support money provision remained unchanged. Therefore, we conclude that there was no change of circumstances.

Affirmed.

1 Husband relies strongly upon cases like Garlinger v. Garlinger, 129 NJ Super 37, 40, 322 A2d 190 (1974), where (out of context) the court said, "* * * it is unconscionable to compel a husband by his daily labor to support the divorced wife in idleness and immorality * * A full reading of that case does not convince us that it is at variance with our decision here; however, regardless of how it is construed, we do not consider Garlinger to be as persuasive at bar as is the posture of Oregon statutory law.