Baier v. Baier

• Decision Date: 22 June 1943
• Citation: 139 P.2d 562,172 Or. 83
• Parties: BAIER <I>v.</I> BAIER
• Court: Oregon Supreme Court

172 Or. 83

139 P.2d 562

BAIER

v. BAIER

Supreme Court of Oregon.

Submitted on briefs June 22, 1943.

Modified July 7, 1943.

Divorce

1. Evidence sustained finding that husband was entitled to divorce on ground of cruel and inhuman treatment.

Divorce

2. In divorce proceedings, children of tender years, more especially girl children, should be awarded into the custody of their mother, notwithstanding the fact that she is the losing party, unless she is morally unfit.

Divorce

3. Where parties in divorce action had two girl children three and four years of age respectively, both parties loved the children and would give them care, and mother displayed qualities of worthy and courageous motherhood, custody of children was awarded to mother with allowance of $20 per month for the support of each child, and father was permitted custody of children during school vacations in summer.

                  See 17 Am. Jur. 517
                  27 C.J.S., Divorce, § 309
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Washington County.

R. FRANK PETERS, Judge.

Suit by Edward Baier against Selma R. Baier for divorce on the ground of cruel and inhuman treatment. From a decree of divorce for plaintiff and giving him custody of children for definite period, defendant appeals.

MODIFIED.

Pat H. Donegan, of Burns, for appellant.

P.L. Patterson and E.J. McAlear, both of Hillsboro, for respondent.

HAY, J.

This was a suit for divorce. In the complaint, the husband charged his wife with cruel and inhuman treatment, specifically, (a) that on numerous occasions she told him that she had no love for him, (b) that she refused to leave Burns, where the parties had resided together, and accompany him to Portland, where he had decided to establish the family home, and (c) that she is lazy and indolent, refused to take ordinary care of a home, and refused to take ordinary care of her children.

The defendant denied generally the matters so laid to her charge and, seeking a decree of divorce in her favor, accused plaintiff of failure to provide for the family, saying that such failure was due to his instability and capriciousness, by reason of which he was unable to maintain himself in steady employment; that he had had work of a permanent character with sufficient pay to meet the needs of the family, but that, without any good cause, he quit such employment and required defendant to go with him elsewhere in search of other work, upon finding which he would repeat the procedure; that a good portion of his earnings was expended on automobiles; that sometimes she and the children lacked the necessaries of life, even to the extent of facing actual want; and she alleged, moreover, that plaintiff, in the presence and hearing of defendant's sister, unjustly accused defendant of marital "infelicity" (infidelity?) and unchastity.

The parties were married on July 25, 1937. They have two girl children, aged respectively about four and three years.

We have carefully perused and considered the transcript of the testimony which was received in this case. The trial judge did not file any memorandum opinion, but sent to the respective attorneys a letter in which he intimated what decision he had come to, and his reasons therefor. This letter is incorporated in appellant's brief. The letter states, in effect, that the evidence shows that both parties are devoted to the children, and apparently would take good care of them, but that the judge was of the opinion that it is advisable to keep the children together during the school year. The court accordingly awarded a decree of divorce to the plaintiff, and gave him custody of the children from September 1st to May 31st "of each year", allowing the defendant to have custody of them from June 1st to August 31st, with an allowance of $40 per month for their support during that period. The decree provided that either party should have the right to visit the children at reasonable times while they were in the custody of the other.

1. The evidence satisfies us that the trial court did not err in awarding a divorce to the plaintiff. We accept the trial judge's decision the more readily because of the fact that he "had the advantage of observing the manner, appearance and demeanor of each witness while testifying". White v. White, 100 Or. 387, 394, 190 P. 969, 197 P. 1080. A detailed discussion of the evidence is not necessary, nor would it be of advantage to the parties or to the profession. Vorpahl v. Vorpahl, 111 Or. 56, 224 P. 830.

At the hearing the plaintiff offered considerable testimony with reference to an alleged affair which he said his wife had had with another man. He based this upon a letter supposed to have been written by his wife to the other man, and found by plaintiff's brother-in-...