Miller v. Miller

BEAN, J.

We are informed by the findings of the trial court as follows:

“Personal service was had in this case. Defendant then wrote to the court for advice; she was notified to employ an attorney. She employed Borden & Gaylord, who appeared, filed motion and procured an allowance for suit-money, including her traveling ex *26 penses to come to place of trial. Said attorneys procured by stipulation an order for further time to plead due to Mr. Borden’s absence.

“At time of trial defendant was present with her attorney and the transcript shows that at the close of the plaintiff’s case Mr. Borden asked defendant if she wished to put in a defense and she, defendant, replied that she had no defense to offer. In open court when this matter was being argued the court asked Mr. Newman, the present attorney for defendant, what Mr. Borden had done or failed to do of which he complained and the reply in substance was that no complaint was made against Mr. Borden or his acts, except the one made by the defendant in her affidavits, viz: — that Mr. Borden advised her that she could not put in an affirmative claim. This Mr. Borden says in his affidavit is not true; that he never so advised her, but was willing at all times to present her cause. The court could not find that Mr. Borden had given such advice without also finding that it was wilful on his part and there is nothing in this record to even raise a suspicion.

“The court listened patiently over two hours to the oral presentation of this matter attempting to get light on the situation produced by defendant’s long recitation of conclusions, but could get little out of defendant’s claim except that she now felt that Mr. Neff was secreting funds of the plaintiff which she did not suspect he had until after the decree.

“There seems to have been a tentative property settlement made out of court concerning which this court is not advised. However', Mr. Neff proposed that a full investigation be had of such trust funds before going further with the case and offered to produce to defendant’s attorney a full and complete accounting of such funds to substantiate that the representations made out of court in regard to such funds were correct. This offer was refused.”

*27 The trial court found that the defendant had had her day in court and that she had ample opportunity to fully present her case and, failing to do so, she is not entitled to another hearing. Citing Carmichael v. Carmichael, 101 Or. 172, 176 ( 199 Pac. 385 ). From the showing made we fully concur in such finding.

There was no showing made by defendant that any material fact had developed since the original decree was rendered, of which defendant was not aware at the time of the hearing before the referee. No good cause is shown why the decree of divorce should be vacated. The plaintiff, through his attorney, has offered, and now offers, to make a property settlement with defendant, and a tentative agreement seems to have been made prior to the divorce decree.

The order appealed from will be affirmed, provided this proceeding will be held in abeyance and remanded to the Circuit Court with authority, in case the parties hereto cannot agree and file a stipulation as to a property settlement to permit issues to be made and take such measures as may be necessary, and decree a settlement of all property interests between plaintiff and defendant.

Neither party will recover costs in this proceeding.

Affirmed.

Burnett, C. J., and McBride and Brown, JJ., concur.