Beelman v. Beelman
| Jurisdiction | Oregon |
| Parties | Mary M. BEELMAN, Appellant, v. Boyd A. BEELMAN, Respondent. |
| Citation | 227 Or. 556,361 P.2d 663 |
| Court | Oregon Supreme Court |
| Decision Date | 10 May 1961 |
Albert H. Ferris, Eugene, for appellant.
LaVerne M. Johnson, Corvallis, for respondent. On the brief were Huston, Thomas & Johnson, Corvallis.
Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN, and LUSK, JJ.
This is an appeal from an order which modified a divorce decree by transferring the custody of a four-year-old girl from the mother to the father.
Through no fault of the appellant mother's present counsel, the trial court record is incomplete. After two days of testimony, the case was continued for several days to afford the parties an opportunity to work out the problems of visitation which had brought them into court. We have a complete transcript of the proceedings to this point.
When the parties reappeared in the trial court, the court reporter was not present. The court apparently heard the parties and their then counsel. Present counsel do not now agree on all the details. We have no record of this hearing. There was, under the present state of the record, a private interview of one or more witnesses by the trial judge. Schuyler v. Haggart, Or., 356 P.2d 955.
There is no record of a stipulation to proceed without a reporter. There is likewise no record of an objection or an exception to the proceeding. There is no showing that the trial judge either possessed or considered knowledge learned outside the courtroom, a practice condemned in Laurance v. Laurance, 198 Or. 630, 258 P.2d 784. What the trial court learned inside the courtroom, we do not know.
Since there is no attempt to obtain reversal either because of the impossibility of producing a record, ORS 19.130(3), or because of any error in denying either party the right to preserve a record for appeal, we must assume that the making of a record was waived. The only assignments of error challenge the decision of the trial court on the merits. Under ORS 17.440, the only way this court can try the case anew is upon the complete record of the proceedings in the trial below. In the absence of a record, we have no basis upon which to reverse the trial court.
This court repeatedly has held that it cannot try the question of child custody de novo upon a record which does not reveal what took place in the trial court. The waiver of the right to make a record below constitutes a...
To continue reading
Request your trial
-
Phillips v. Johnson
...factors. In the absence of a transcript of the testimony as offered at that hearing we must presume that he did so. Cf. Beelman v. Beelman, 227 Or. 556, 558, 361 P.2d 663, 363 P.2d 561 For all of these reasons we remand this case to the trial court for further proceedings not inconsistent w......
-
Fry v. Ashley
...identical case which the trial court decided.' Rea v. Rea, 195 Or. 252, 262, 245 P.2d 884, 888, 35 A.L.R.2d 612. See, also, Beelman v. Beelman, Or., 361 P.2d 663. Turning now to the present code of appellate procedure, it is provided that the transcript, i. e., the transcript of the court r......
-
State v. Hecket
...even until the disposition of the cause by the appellate court. Fry v. Ashley, 228 Or. 61, 71, 363 P.2d 555 (1961); Beelman v. Beelman, 227 Or. 556, 560, 361 P.2d 663, 363 P.2d 561 (1961); State ex rel. United Railways Co. et al. v. Ekwall, 135 Or. 439, 443, 296 P. 57 (1931). This assignmen......
-
Lackey v. Lackey
...Pursuant to stipulation the trial judge interviewed the three girls without a record's being made of the interview. In Beelman v. Beelman, 227 Or. 556, 361 P.2d 663, 363 P.2d 561 (1961), and Schuyler v. Haggart, 224 Or. 530, 356 P.2d 955 (1960), the Supreme Court held that if the appellant ......