Crowell v. Crowell

Decision Date03 November 1948
Citation198 P.2d 992,184 Or. 467
PartiesCROWELL <I>v.</I> CROWELL
CourtOregon Supreme Court
                  See 27 C.J.S., Divorce, § 329
                  160 A.L.R. 400
                  17 Am. Jur. 521
                

Appeal from Circuit Court, Polk County.

ARLIE G. WALKER, Judge.

Paul R. Harris, of Portland, argued the cause and filed a brief for appellant.

C.L. Marsters, of Dallas, argued the cause for respondent. With him on the brief was Philip Hayter, of Dallas.

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

Habeas corpus proceeding by Marshall Crowell against Delia Nora Crowell, also known as Delia Evans, to determine the custody of a daughter of the parties. From a decree dismissing the writ and awarding custody of the daughter to the defendant, the plaintiff appeals.

AFFIRMED.

BELT, J.

This is a habeas corpus proceeding to determine the custody of a little girl named Mary, about eight years of age. From a decree dismissing the writ and awarding the absolute custody of the child to the mother, the plaintiff-father appeals.

The plaintiff and the defendant were married in Tucson, Arizona, in 1931, and after residing there for about ten months, moved to Texas where they resided for a period of nine years. While in Texas, Mary was born on February 21, 1940. According to the defendant, she was subjected to brutal treatment by her husband and was compelled to leave Texas with her baby and go to Elton, Oklahoma. She says that her husband kicked, struck and choked her at a time when she was pregnant with child. On one occasion some of her ribs were "torn loose" and she was obliged to go to a hospital for treatment. Police officers were once called to the home to afford her protection. Plaintiff admits that he struck his wife but asserts that she hit him first. He seems to have had a sort of cave-man philosophy that it was right to chastise his wife when, in his opinion, she did not behave. When she left plaintiff in Texas, she says that she was "absolutely through" and was determined that neither she nor her baby would ever see him again. When the defendant-mother arrived in Oklahoma, she was destitute and was obliged to earn her living by washing dishes in a restaurant. When the plaintiff followed her to Oklahoma, she instituted a suit for separate maintenance in that state against him and succeeded in obtaining personal service. The court in its decree not only awarded her separate maintenance but gave her the absolute custody of the child. From this decree the plaintiff did not appeal. On the pretext of showing the baby to a friend, the plaintiff surreptitiously took the child to Texas. A few months thereafter, plaintiff commenced a suit for divorce against his wife and obtained jurisdiction by substituted service. The court in April, 1942, entered a decree of divorce in his favor and awarded to him the absolute custody of the child. The record does not disclose upon what ground the plaintiff claimed the right to a divorce. Was it extreme cruelty on the part of his wife? Defendant contends that she had no knowledge of this divorce decree until many months after it was entered. When the plaintiff took the child from Oklahoma, the defendant-mother was without funds to enable her to take the necessary legal steps to obtain possession of her daughter. She went to work, however, and after attending college in Oklahoma, obtained a Bachelor of Arts degree. Later she taught music in a high school. When she had sufficient funds, she returned to Texas and succeeded in getting possession of her child and bringing her back to Oklahoma without the knowledge or consent of the plaintiff. After she returned to Oklahoma, plaintiff instituted a habeas corpus proceeding to determine the legal custody of the child. After hearing, a decree was entered in November, 1942, awarding custody of the child to the mother for a nine-months' period and custody to the father for three months. Before the expiration of the nine-months' period, the mother, in defiance of such decree, took the child with her to Oregon in February, 1943, where she has continuously resided ever since.

After the defendant left Oklahoma, the plaintiff succeeded in obtaining a modification of the decree entered in that state in the habeas corpus proceeding, so that he was awarded the absolute custody of the little girl. With the aid of detectives and police officers, plaintiff finally located the defendant and her child at Portland, Oregon, where she was working as a welder in a shipyard. Plaintiff came to Oregon armed with warrants for arrest of defendant and, on the day before Thanksgiving in 1944, surreptitiously obtained possession of the child. After "touring" California and Texas — he was selling patent medicines — plaintiff took the child back to Oklahoma. Plaintiff, having no home of his own, placed the little girl with a private family under highly unfavorable conditions. On complaint of the Commissioner of Charities...

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9 cases
  • Helton v. Crawley
    • United States
    • Iowa Supreme Court
    • February 7, 1950
    ...Langan, 80 U.S.App.D.C. 189, 150 F.2d 979, 980; McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 448,160 A.L.R. 396;Crowell v. Crowell, 184 Ore. 467, 198 P.2d 992, 994. There is no dissent among the authorities or decisions to the doctrine of parens patriae as above stated. Other child-cu......
  • Dieringer v. Heiney
    • United States
    • Oregon Court of Appeals
    • June 9, 1972
    ...decree. Lorenz v. Royer, supra, 194 Or. at 371, 241 P.2d 142; Quinn v. Hanks, 192 Or. 254, 263, 233 P.2d 767 (1951); Crowell v. Crowell, 184 Or. 467, 198 P.2d 992 (1948); Ashbaugh v. McKinney, 182 Or. 652, 189 P.2d 583 (1948); Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402 (1944); Griffin ......
  • Lerner v. Superior Court In and For San Mateo County
    • United States
    • California Supreme Court
    • March 25, 1952
    ...181 P.2d 885; Cook v. Cook, 77 U.S.App.D.C. 388, 135 F.2d 945, 946; Gaunt v. Gaunt, 160 Okl. 195, 196, 16 P.2d 579; Crowell v. Crowell, 184 Or. 467, 472, 198 P.2d 992; Haynie v. Hudgins, 122 Miss. 838, 853, 85 So. 99; White v. White, 77 N.H. 26, 30, 86 A. ,353; Commonwealth ex rel. Rogers v......
  • Lorenz, Application of
    • United States
    • Oregon Supreme Court
    • February 20, 1952
    ...27 C.J.S., Divorce, § 329, p. 1283; 39 C.J.S., Habeas Corpus, § 46b, p. 586. We have adopted that rule in this state. Crowell v. Crowell, 184 Or. 467, 198 P.2d 992; Ashbaugh v. McKinney, 182 Or. 652, 189 P.2d 583; Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402; Armstrong v. Vancil, supra; ......
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