383 P.2d 775
Oregon Supreme Court.Argued June 27, 1963
Affirmed July 15, 1963
Appeal from the Circuit Court, Marion County, JOSEPH B. FELTON, Judge.
AFFIRMED.
William B. Wyllie, Salem, argued the cause for appellant. With him on the brief were George A. Rhoten, Myron L. Enfield and Rhoten, Rhoten Speerstra, Salem.
No appearance for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
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PER CURIAM.
This is an appeal from a decree of separation from bed and board for three years entered under the provisions of ORS 107.320.[1]
The defendant-husband in the divorce case challenges the right of the trial court to grant a decree of limited separation after the trial court had observed from the bench that the plaintiff-wife had failed to prove sufficient grounds for a divorce.
Since the quoted statute contemplates cases in which there may be a judicial separation even though divorce must be denied, e.g., where the parties have not resided within the state for one year, or where the plaintiff is himself guilty of serious misconduct, it is obvious that a trial court has the power to grant a separation after finding that there is no basis for a decree of divorce. The only remaining question is whether the trial court has discretion in the relief it may grant. It has. See Godfrey v. Godfrey, 228 Or. 228, 364 P.2d 620 (1961) LaFollett v. LaFollett, 138 Or. 411, 2 P.2d 1109, 6 P.2d 1085
(1932).
The trial court having discretionary power to do what it did, this court can not say the trial court abused its discretion unless the transcript of the testimony reveals an abuse of discretion. The defendant has not brought up the transcript. We can not speculate concerning what it might contain. For all this court knows, the trial court could have found facts that
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would have entitled the plaintiff to a decree of separation even though she may not have been entitled to a divorce. (The trial court also might have spoken too soon when it said plaintiff was not entitled to a divorce, but she is not appealing.) The trial court, in its discretion, may have concluded that a limited period of separation was proper in all the circumstances.
Under ORS 107.410, the trial court had full equity powers, and it is not for this court to say that the trial court abused its discretion when we have no way of knowing what the evidence was.
Affirmed.
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