Cooley v. Cooley

• Decision Date: 14 November 1969
• Parties: Evelyn Joanne COOLEY, Respondent, v. Robert Edwin COOLEY, Appellant.
• Court: Oregon Court of Appeals

Page 65

461 P.2d 65

1 Or.App. 223

Evelyn Joanne COOLEY, Respondent, v. Robert Edwin COOLEY, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 1969.

Decided Nov. 14, 1969.

Kenneth E. Shetterly, Jr., Dallas, argued the cause for appellant. On the briefs were Hayter, Shetterly, Noble & Weiser, Dallas.

Richard D. Barber, Salem, argued the cause for respondent. On the brief were DeArmond, Sherman & Barber, Salem.

Before LANGTRY, P.J., and FOLEY, FORT and BRANCHFIELD, JJ.

BRANCHFIELD, Judge.

This is an appeal by the defendant husband from a decree which denied a divorce to the plaintiff, granted a divorce to the defendant, divided property between the parties, awarded custody of the parties' minor son to the plaintiff, and provided for payments to the plaintiff for the support of the minor child.

After the plaintiff filed her complaint in this case, the defendant filed a motion for temporary custody of the son, Robbie. On June 19, 1968, the court conducted a hearing on the motion. The testimony taken at this hearing showed that after the separation of the parties, Mrs. Cooley, accompanied by her four-year-old son, had spent several nights in the home of another man. There was testimony that the car belonging to this man was parked on a street outside plaintiff's apartment all night on several occasions during the same period of time. The court awarded custody of the child to the defendant Pendente lite, giving the wife the right of reasonable visitation but ordering that she not have any adult male companions with her in the presence of the child.

Thereafter, the case came on for trial on September 26, 1968. The decree of the circuit court was entered October 14, 1968.

There was no appeal from that portion of the decree awarding a divorce to the defendant.

During the interval between the temporary award of custody and the divorce trial the child was rotated among three different homes. The boy stayed overnight with his aunt and uncle, with the father picking him up about noon. They would be together then for three or four hours until the defendant took him back to the aunt and uncle on his way to work. The plaintiff usually had her son on Wednesday nights and from Friday afternoon until Sunday. The boy was with the defendant, who had custody, for about 20 hours per week. He spent from two to two and one-half days per week with his mother, and the rest of the time he was with his aunt and uncle. The arrangement was unsatisfatory to everyone involved.

Testimony showed that if the defendant were to retain custody, he would continue to rely upon his brother and sister-in-law to keep the boy most of the time, with the possibility that his work hours might be changed to a somewhat more suitable time for caring for the child.

After the June hearing, at which the plaintiff lost the custody of her child, she moved back into her parents' home, where she kept the child during his visits to her.

The plaintiff claims to have repented her indiscretions following the separation of the parties. She testified as follows:

'Q. Do you feel that you have rehabilitated yourself from any indiscretions that may have occurred in the past?

'A. I have learned a very good lesson or a bad one, I don't know which may you'd put it. But these last three months have been hell.

'Q. Anything or any person in the world who you would permit to come between you and your son?

'A. No.

'Q. There's no relationship as nearly important as that of your son and you.

'A. No.

'Q. You are willing to cut off any existing relationship?

'A. I have cut them all off.'

Plaintiff's mother corroborated her testimony. There was no evidence to the contrary.

The trial court must have been convinced by the testimony that both parents love Robbie, and either would take excellent care of him. But it is evident that the trial court believed that the welfare of the child would be furthered if he were placed with his mother. The Supreme Court said in Shrout v. Shrout, 224 Or. 521, 523, 356 P.2d 935, 936 (1960):

'It is a universal rule, frequently stated by this court, that in providing for the custody of children, the controlling consideration is the welfare of the children--all other rules are secondary and of value only as they aid the court in deciding what is best for the children. * * *'

This court is reluctant to disturb the decree of the trial court as to the custody of children where the case is purely one of fact, and the evidence is sufficient to warrant the conclusion reached by the trial court. Bennehoff v. Bennehoff, 209 Or. 224, 225, 304 P.2d 1079 (1956); Henry v. Henry, 156 Or. 679, 69 P.2d 280 (1937).

The defendant charges error in awarding the custody of the minor child to the plaintiff. He argues that the custody should not be changed from the award made Pendente lite except upon a showing of a change of circumstances.

There was evidence from which the trial court might have found a change of circumstances in the time elapsed between the June custody hearing and the September divorce trial. He did not rest his decision on that ground and did not need to do so. The general rule with regard to modification is stated in Wells v. Wells-Crawford, 120 Or. 557, 564, 251 P. 263, 266, 251 P. 907 (1927). The Supreme Court there said:

'The modification of a decree, for the care and custody of a minor child of divorced parents, must be based on some change in the circumstances relating thereto and occurring since the rendition of the original decree, or upon some fact not known at the time of such decree. * * *

'In order to warrant the court in modifying a decree for the care and custody of such minor child, it should be shown that such modification would enhance the welfare of the child, or that the change in circumstances * * * has been such as injuriously affected the child. * * *'

Similarly, see Gonyea v. Gonyea, 232 Or. 367, 375 P.2d 808 (1962); Henrickson v. Henrickson, 225 Or. 398, 358 P.2d 507 (1961), and Kellogg v. Kellogg, 187 Or. 617, 213 P.2d 172 (1949). But the rule as stated applies only to modifications of a decree, not to orders Pendente lite. The language of those cases does not inhibit the trial court from entering an appropriate decree, regardless of the temporary custody prior to the entry of any decree.

We have conducted an extensive survey of Oregon divorce cases where the question of custody became an issue. We found none which required the showing of a change of circumstances between the entry of a temporary order and the entry of a decree. Most of the cases do not even show what the custody was prior to the decree.

Gibson v. Gibson, 196 Or. 198, 247 P.2d 757 (1952) contains language which, on the surface, appears to support defendant's position. At page 213 of the Oregon report, 247 P.2d at page 763, the Supreme Court, speaking through Mr. Justice Rossman, said:

'* * * Obviously, there must be an end to controversy, especially when it arises out of the disputes of divorced parents concerning their offspring, and, accordingly, orders entered by a court upon the subject are deemed final as to the conditions existing at the time of the entry of the order. That is true even if the order was entered ex parte. Phillips v. Phillips, 175 Or. 14, 149 P.2d 967. As a result, a parent who seeks a modification of an order controlling custody has the burden of proving a change in the attendant circumstances or of showing that a material fact existing at the time when the order was made was not disclosed to the court: Flanagan v. Flanagan (195 Or. 611) 247 P.2d 212 (1952); Goldson v. Goldson, supra (192 Or. 611, 236 P.2d 314); Shradar v. Shradar, 188 Or. 199, 214 P.2d 803; Cripe-Dunn v. Cripe, supra (186 Or. 502, 207 P.2d 1049); Leverich v. Leverich, 175 Or. 174, 152 P.2d 303.'

In Gibson, the trial court, subsequent to the entry of the decree awarding custody to the wife, entered an order which awarded 'the temporary care, custody and control' of the child to the father. It is this 'temporary' order to which the court was referring in the above quoted language. The cases cited in that quotation are authority only for the requirement that a change of circumstances must be shown when a party seeks to modify a decree. They do not discuss the entry of a decree which differs from an earlier order Pendente lite.

We have found few cases in other jurisdictions which have dealt with a request that a change of circumstances must be shown. One of such cases is State ex rel. McKenzie v. La Driere, 294 S.W.2d 610 (Mo.App.1956), which held that such requirement applied only to a final award of custody, not a temporary order. In Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963), the court said:

'The authority of the presiding judge, frequently referred to as plenary, * * * to control the custody of minor children (under age 14) pending a divorce suit between their parents is very broad, so that in the exercise of sound discretion the judge may from time to time, until the final decree is entered, modify his orders in this respect and transfer the possession of the children from the persons to whom custody was originally granted and commit them into the care of other and different parties. * * * Such orders are necessarily interlocutory, * * * because in the event there is no valid divorce granted upon the trial of the case the orders previously entered concerning the custody of the children pending the divorce suit, without any action on the judge's part except the denial of the divorce, are rendered inoperative and are automatically rescinded. * * *

'The orders entered by the presiding judge...