Bestel v. Bestel

• Decision Date: 14 January 1936
• Citation: 153 Or. 100,53 P.2d 525
• Parties: BESTEL v. BESTEL. [*]
• Court: Oregon Supreme Court

53 P.2d 525

153 Or. 100

BESTEL v. BESTEL. ^[*]

Supreme Court of Oregon

January 14, 1936

Department 2.

Appeal from Circuit Court, Multnomah County; Clarence H. Gilbert Judge.

Suit for divorce by Malka Bestel against Fred Bestel, wherein plaintiff was granted a decree of divorce and custody of their minor child. From an order awarding custody of the child to defendant, plaintiff appeals.

Reversed and remanded, with directions..

See also, 44 P.2d 1078.

F. Leo Smith, of Portland, for appellant.

Benj. B. Goodman, of Portland, for respondent.

RAND, Justice.

On September 5, 1934, in a suit then pending in the circuit court for Multnomah county and heard before the Honorable Clarence H. Gilbert, one of the judges thereof, the plaintiff, Malka Bestel, was granted a decree of divorce from the defendant, Fred Bestel, and was awarded the custody of their minor child, Frederic Bestel, then about fifteen months of age.

On January 24, 1935, the defendant filed a motion in said court supported by his own affidavit alone, praying that the child be taken from its mother and be awarded to him. This affidavit wholly failed to show that any change in the condition of things had occurred after the entry of the decree or that any valid grounds existed warranting a modification of the decree in respect to the custody of the child. Affidavits in opposition thereto were filed on behalf of the plaintiff, and on January 30, 1935, a hearing was had on said affidavits, the plaintiff being present at the time with her witnesses and not being permitted to offer any testimony, either for or against the motion, but at that time she was directed to bring the child into court. Thereafter and on February 4, 1935, and while the plaintiff was present in court with the child, without making or entering any written order and purely on the verbal order of Judge Gilbert, the child was taken from the custody of the mother and delivered over to the Waverly Baby Home, where it was kept for fifty-six days. Subsequently and on the 28th day of March, 1935, another hearing was had before Judge Gilbert at which time the plaintiff was present and not permitted to testify or offer any evidence in her behalf. Another verbal order was made, directing that the custody of the child should be awarded to the father for the period of six months and after the expiration of that period that it should be turned over to the mother for a like period of time and that thereafter the custody of the child should alternate between them for like periods of time until the child should reach the age of six years, at which time it was directed that an order should then be made determining who should have the permanent custody of the child. At this hearing on March 28 1935, the only testimony was that of Mrs. Neth, the chief probation officer of the department of domestic relations, over which Judge Gilbert, in addition to his duties as circuit judge, has jurisdiction under the statute. The testimony given by this probation officer was wholly hearsay and none of it was competent or admissible as evidence in the case. From this order last referred to, which was not entered of record until April 6, 1935, and was then entered as a nunc pro tunc order as of March 26, 1935, the plaintiff has appealed.

Until April, 1935, no entry of any order in respect to any of the matters above referred to was made of record and everything that had been done in respect to the custody of this child was done pursuant to the verbal orders of the court, and there was no record made of any of said proceedings except merely the filing of said affidavits, and all orders entered in respect to any of said matters were nunc pro tunc orders entered long after these verbal orders had been made, and from each and all of these orders it appears that the court acted on information secretly conveyed to him by Mrs. Neth, whom he had ordered to make an investigation, none of which said information was or ever has been made a matter of record in said cause.

The order appealed from is in the following words:

"The motion of the defendant, asking that the decree herein be modified as to the custody of the minor child by taking custody from the mother (plaintiff) and awarding the child to defendant, came on for hearing on the 30th day of January, 1935, and the court having heard the arguments of counsel and considered the affidavits for and against said motion, and also having had the benefit of an investigation by the staff of this department pursuant to an order for such investigation entered herein on the 30th day of January, 1935, and there having been disclosed a situation of extreme and unwarranted bitterness between the parents of the child and their relatives, which is extremely disastrous to the welfare of the child, it is therefore Ordered that the custody of said child be, and it is hereby, awarded to the father for a period of six months dating from the 1st day of March, 1935; that the mother have the custody of said child for six months beginning with the 1st day of September, 1935; the custody of the child thereafter to alternate between the two parents for periods of six months each, until it arrives at the age of six years, at the expiration of which time the court will determine such disposition as may be best for the welfare of the child. During the time the child is in the custody of the plaintiff, the defendant is ordered to pay to the clerk of this court for its support the sum of $15.00 per month. The parent not having custody may visit the child while it is in the home of the other parent, and the court enjoins the parties and their relatives to refrain from all controversy, discord or discourtesy during the occurrence of said visits; and if either party, or those with whom they place the physical custody of the child, wilfully violates this injunction, the court may, on its own motion, upon such facts being shown, change the custody of the child as the situation as disclosed after hearing and investigation may warrant. The controversy and discord in regard to the custody of this child having been constantly brought to the attention of this court and its staff, unofficially, practically ever since the decree was granted, should said discord and controversy continue in the future to the detriment of said child, as it has in the past, the court reserves the right of its own motion, after notice to the parties and due hearing, of again changing the custody of said child in such manner as may appear best for its welfare.

"It is further Ordered that said minor child shall not be taken out of the State of Oregon by either of the parties, or any one else, without the written approval of this court first obtained. It is further Ordered that the temporary order heretofore made on the 4th of February, 1935, temporarily committing said minor child to the Waverly Baby Home, be, and it is hereby vacated, and that the defendant pay the cost of keeping said child in said Waverly Baby Home while there.

"This order having been made on the 26th day of March, 1935, and not entered on that date through inadvertence on the part of the court, it is hereby Ordered that this modification of decree be effective as of March 26, 1935. (Signed) Clarence H. Gilbert, Judge."

The other nunc pro tunc orders read as follows:

"The defendant having filed a motion herein on the 24th day of January, 1935, asking that the decree of the court entered on the 10th day of September, 1934, awarding the custody of the minor...