WELLS v. WELLS, 9 Or. App. 9 (1972)

495 P.2d 1239

WELLS, Respondent, v. WELLS, Appellant.

Oregon Court of Appeals.Argued February 24, 1972
Reversed and remanded April 13, 1972

Appeal from Circuit Court, Multnomah County, JEAN L. LEWIS, Judge.

Leland F. Hess, Portland, argued the cause for appellant. With him on the brief were Hess and Hess, Portland.

Glenn H. Prohaska, Portland, argued the cause for respondent. With him on the brief were Reiter, Day, Wall Bricker, Portland.

Before SCHWAB, Chief Judge, and FORT and THORNTON, Judges.

REVERSED AND REMANDED.

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SCHWAB, C. J.

Defendant-husband appeals from an order of the trial court which modified an earlier divorce decree by granting an increase in alimony to plaintiff-wife.

About three weeks after the trial, the court conferred with both counsel and asked for more information concerning plaintiff’s physical condition and ability to work. Plaintiff obtained a medical report from her physician which was submitted to the court. At a second conference the court offered defense counsel the opportunity to call the doctor into court, at its own expense, for the purpose of cross-examination. Defense counsel objected to any use of the report on grounds of hearsay. The controversy appeared settled when the court and both counsel agreed to remove the report from the record. It is reasonable to assume that defense counsel understood this agreement as meaning that the report would not be used by the court in reaching its decision.

Subsequently, the trial court granted an increase and defendant appealed. Before the transcript was settled, the trial judge on her own motion again called counsel into chambers and told them that she felt that in fact she had relied on the medical report in reaching her decision.

The consideration of motions for change in alimony rests in the sound discretion of the trial court subject to review de novo. See, Emery v. Emery, 5 Or. App. 133, 481 P.2d 656, Sup Ct review denied (1971). It is not possible for this court to review a decision which is based on a report that is not in the record. Plaintiff is entitled to a decision by the trial judge based only on properly admitted evidence.

Reversed and remanded.

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