McElroy v. McElroy

GIBSON, C. J.

The plaintiff filed an action for divorce on the ground of extreme cruelty against Benjamin McElroy, her husband, and joined his parents, Emma and James McElroy, alleging that they were liable to the plaintiff for certain community funds which had been transferred to them by their son during his marriage. The husband could not be served personally within this state, but summons was ordered published, and he was served personally and by registered mail in the State of Oregon. He did not answer or appear, and his default was duly entered. The parents appeared and defended.

The wife was given a judgment of divorce which awarded her certain community property situated in this state consisting of household furniture, 14 government bonds, $150 in cash, and a 1930 automobile. She was also awarded the custody of their infant son. The husband did not appeal from the judgment.

The court further found that the wife was entitled to $3,000 of the funds transferred by the son to his parents, and she was given judgment against them in that sum. At the time the transfers were made, the parents lived in California and deposited the money in a California bank, but before this action was brought the money was removed to Oregon, where the parents now reside. The court- found that no consideration had been given for the transfer and that the parents had received the money with knowledge that the funds were community property.

[831]

The parents have appealed, contending primarily that the court lacked jurisdiction to enter a money judgment against them. They argue that the effect of the judgment was to adjudicate the respective interests of the husband and wife in property not located in California, and that the court was without power to render such a judgment since the husband was not personally served within this state.

The trial court found that the parents held the money transferred to them as trustees for plaintiff and her husband, and the evidence amply supports this finding. It was stipulated that $6,000 derived from the earnings of the husband after his marriage was transferred to the parents and no claim is made that the money was intended as a gift to them or as payment of any legal obligation owed to them. Plaintiff testified that the purpose of the transfer was for “safekeeping.” In a letter from James McElroy to his son, the father stated, “We will be on the lookout for your Insurance Policy and such funds as you allot to us will be carefully guarded as a nest egg for you when you are discharged. It is then you will need it.”