Allen v. Allen

• Decision Date: 24 March 1954
• Citation: 268 P.2d 358,200 Or. 678
• Parties: ALLEN v. ALLEN.
• Court: Oregon Supreme Court

Page 358

268 P.2d 358

200 Or. 678

ALLEN v. ALLEN.

Supreme Court of Oregon.

Argued March 3, 1954.

Decided March 24, 1954.

William S. Fort, Eugene, argued the cause for appellant, on the briefs were Husband, Fort & Johnson, Eugene.

John W. Pennington, Eugene, argued the cause for respondent, on the brief were Ray & Pennington, Eugene.

Before WARNER, Acting C. J., and LUSK, BRAND and PERRY, JJ.

WARNER, Acting Chief Justice.

Vernon V. Allen, the appellant, and Helen Allen (now Helen Allen Miller) the respondent, were divorced in 1948 pursuant to a decree made in the circuit court for Lane county. The decree followed a stipulation of the parties with reference to the custody and control of the children of the parties and provided in part:

'The Plaintiff [Vernon V. Allen] is granted the care, custody and control of the minor children of the parties, Glenn Ray Allen and Helen Kay Allen, during eleven months of the year, including the entire school year, and the Defendant is granted the care, custody and control of the minor children for the period of one month in each year between July 1 and August 31 and beginning with the year 1948.'

While the children were in the custody of the respondent in California in 1950, pursuant to the provisions of the 1948 drcree, respondent instituted a proceeding in the Superior Court of that state wherein she sought to modify the Oregon decree and thereby secure the complete custody and control of the children. The California court attempted to change the Oregon decree only to the extent of conferring on the children's mother an expanded right to have them with her 60 days of the summer season and on alternate Christmas and Easter vacations.

Inspired, no doubt, by this action of the California court and to circumvent its repetition, Mr. Allen moved the circuit court of Lane county for a modification of the custody provision of the Oregon decree so as to provide that the care, custody and control of the children vest solely in him. subject only to the right of reasonable visitation in Oregon by their mother. The father appeals from the circuit court's denial of the motion.

The appellant urges two matters as his claim of a change of conditions warranting such modification in accordance with his motion. They are (1) the wishes of the children and (2) the fundamental changes flowing from their growth and development during their adolescence. No representation is made by either party derogatory to the character of the other. The lower court found no merit in either claim sufficient to warrant an allowance of appellant's motion. We concur in those findings.

The wishes of the children are reflected by certain letters written by them expressing a desire to remain with the appellant. At the time of the motion in 1951 the boy was 13 years of age and the girl 11. Appellant contends that these preferences of the children are entitled to 'substantial weight'. A more nearly accurate evaluation of this kind of evidence is that if the child has attained the age of discretion, the court may consider it as persuasive, although not controlling. Hurner v. Hurner, 179 Or. 349, 365, 170 P.2d 720; Johnston v. Johnston, 155 Or. 256, 257, 63 P.2d 209. Our examination of these letters, particularly those written in Lane county in December 1951, inclines us to believe that they were not free and spontaneous expressions of the youthful writers but, on the other hand, were written responsive to the subtle influences which a parent can bring to bear on an unsuspecting youthful mind and thereby incite in the child prejudices against one parent and excessive devotion in favor of the other. The circuit court was correct in refusing to be persuaded by their contents.

The record reveals that the circuit court, in arriving at its conclusion in the matter at bar, gave some respect to the California decree above referred to, apparently on the theory that the Allen children had established a legal domicile in that state while visiting their mother in response to the mandates of the Oregon decree. It raises the question of the place of the children's legal domicile and is of such importance in this matter that it should be set at rest for all time.

A very apparent reason for the father's desire to modify the decree is to still any future contention concerning the legal domicile of the children and in a manner which will compel the respect of courts in foreign states. There is much in the record to warrant such a desire, particularly in terms of the welfare of the son and daughter of the parties. Too frequently and in too many places the Allen children have been made pawns in the conflict between their father and mother in the efforts of each to obtain complete custody and exclusive control. It is a record which does neither party any honor. It strongly suggests that the cloak of paternal affection with which they drape themselves is but a cover to a smoldering spirit of vindictiveness engendered before their divorce and since inflamed by...