Cripe v. Cripe

• Decision Date: 28 June 1949
• Citation: 186 Or. 502,207 P.2d 1049
• Parties: CRIPE (NOW DUNN) <I>v.</I> CRIPE
• Court: Oregon Supreme Court

186 Or. 502

207 P.2d 1049

CRIPE (NOW DUNN)v.

CRIPE

Supreme Court of Oregon.

Argued May 2, 1949.

Reversed June 28, 1949.

Divorce — Custody — Best interests of children

1. The paramount consideration in determining to whom custody of children shall be awarded upon dissolution of marriage is welfare and best interests of the children. O.C.L.A. § 9-914, subd. 1.

Divorce — Custody — Children of tender years

2. Generally, children of tender years should be awarded in divorce action to custody of mother unless she is morally unfit. O.C.L.A. § 9-914, subd. 1.

Divorce — Custody — Modification

3. Divorce decree fixing custody of the child is final on conditions then existing and may not be modified thereafter unless based on some change in circumstances relating thereto and occurring since rendition of original decree, or on material facts existing at time of decree but unknown to court, and then only when such modification would be for best interests of the child. O.C.L.A. § 9-914, subd. 1.

Divorce — Custody — No change in circumstances

4. Evidence failed to establish change in circumstances subsequent to divorce decree awarding custody of children to wife, so as to entitle husband to modification of decree by awarding custody of children to him, notwithstanding that wife subsequently married one who prior to their marriage had pleaded guilty of a crime and was sentenced to imprisonment in county jail for period of two months, where it appeared that wife's second husband had paid his debt to society and had since that time served in military service and had established himself as a substantial and industrious citizen. O.C.L.A. § 9-914, subd. 1.

                  See 27 C.J.S., Divorce, § 317
                

Appeal from Circuit Court, Deschutes County.

RALPH S. HAMILTON, Judge.

Mark V. Weatherford argued the cause for appellant. On the brief were Charles E. Boardman, of Bend, and Weatherford & Thompson, of Albany.

A.C. Goodrich argued the cause for respondent. On the brief were DeArmond, Goodrich & Foley, of Bend.

Before LUSK, Chief Justice, and BRAND, ROSSMAN and BAILEY, Justices.

Action by Ruth L. Cripe, now Ruth L. Dunn, against Edwin S. Cripe for divorce, wherein plaintiff was granted decree of divorce from defendant and was awarded custody of the two children of the parties. From order granting defendant's motion for modification of decree by granting to him custody of the children, the plaintiff appeals.

REVERSED.

BAILEY, J.

Plaintiff, Ruth L. Cripe, and defendant, Edwin S. Cripe, were married in April, 1940. To them were born two sons, Robert Lynn and Edwin Bryce, March 29, 1941, and December 29, 1943, respectively. Thereafter, and on June 26, 1946, plaintiff was granted a decree of divorce from the defendant and was awarded the custody of their two children. On August 13, 1948, defendant filed a motion asking that that decree be modified by granting to him, instead of to plaintiff, their care, custody and control. From an order granting defendant the requested modification, plaintiff has appealed.

Section 9-914 (1), O.C.L.A., (reenacted, Ch. 228, Oregon Laws 1947) empowered the court, whenever a marriage should be declared void or dissolved, to provide for the future care and custody of the minor children of the marriage "as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault." In the instant case the decree of divorce was granted to plaintiff, Ruth L. Cripe, now Ruth L. Dunn. She was therefore not the party in fault, and, in accordance with the foregoing provisions, was awarded the custody of the children.

1, 2. The paramount consideration in determining to whom the custody of the children shall be awarded, upon the dissolution of a marriage, is the welfare and best interests of the children. Sachs v. Sachs, 145 Or. 23, 25 P. (2d) 159, 26 P. (2d) 780; Van Doozer v. Van Doozer, 181 Or. 274, 181 P. (2d) 126. This court has generally held that children of tender years should be awarded to the custody of the mother unless she is morally unfit. Sachs v. Sachs, supra; Phillips v. Phillips, 175 Or. 14, 149 P. (2d) 967; Leverich v. Leverich, 175 Or. 174, 152 P. (2d) 303; Richardson v. Richardson, 182 Or. 141, 186 P. (2d) 398.

Defendant was in the armed service from June 21, 1945, until December 19th of that year. Upon entering the service his wife was allotted by the government $100 a month. She did not consider this sufficient to care for herself and two boys and a daughter by a former marriage. This daughter was two or three years older than their first-born child and was afflicted with diabetes. During most of the time that her husband was in the service plaintiff worked in her mother's restaurant. She placed the two boys, with the consent of her husband, in the home of Mrs. Ole Grubb, who fed and cared for them for $60 a month. While they were there plaintiff visited them frequently.

In his affidavit, which is made a part of his motion for a modification of the decree, and in his testimony, defendant asserts that plaintiff is not a fit and proper mother to have the care, custody and control of their minor children. Most of the evidence produced by defendant to prove such assertion relates to happenings which occurred, and were well known to the defendant, prior to the granting of the decree of divorce to plaintiff. Many of the charges made by defendant against the plaintiff, concerning her alleged unfitness to have the custody of the children, are not...