Dent v. Pollard

• Decision Date: 17 May 1961
• Citation: 362 P.2d 324,227 Or. 399
• Parties: Barbara Ann DENT, formerly Barbara Ann Pollard, Appellant, v. Aaron Leroy POLLARD, Respondent.
• Court: Oregon Supreme Court

Page 324

362 P.2d 324

227 Or. 399

Barbara Ann DENT, formerly Barbara Ann Pollard, Appellant, v. Aaron Leroy POLLARD, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted May 4, 1961.

Decided May 17, 1961.

Randolph Slocum, Roseburg, argued the cause for appellant. On the briefs were Horn & Slocum, Roseburg.

John B. Ebinger, Brookings, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

PER CURIAM.

This is a divorce suit in which the decree awarded custody of the children of the marriage, two boys aged 11 and 12 years, to the defendant father. Thereafter the plaintiff moved the court to modify the decree by awarding custody of the children to her. After a hearing the court denied the motion and plaintiff has appealed.

The record on appeal must be prepared and transmitted to the Supreme Court in the manner provided in ORS 19.074 to 19.098. ORS 19.074 provides that in every case the trial court file shall be transmitted to the Supreme Court as part of the record. Unless a transcript or a narrative statement in lieu of a transcript is filed, the record shall consist of the trial court file alone.

An Appellant who wants the record to include a transcript must, at the time of filing the notice of appeal, also serve and file a 'designation of such parts of the proceedings and exhibits as he desires to be included in the record in addition to the trial court file.' ORS 19.074(2)(a). In this case the appellant failed to file such a designation and for that reason the transcript was stricken from the record on motion of the respondent. As a consquence this case is before us on a record consisting only of the trial court file.

Without a transcript we are unable to determine whether the trial court erred in refusing to award plaintiff custody of her children. The only question which we could consider, if raised, is whether the pleadings support the order appealed from. Matthews v. Matthews, 60 Or. 451, 456, 119 P. 766; Wood v. School District No. 13 et al., 107 Or. 280, 214 P. 589; Portland Mortgage Co. v. Elder, 152 Or. 406, 408, 53 P.2d 1045; Andersen v. Turpin, 172 Or. 420, 432, 142 P.2d 999; In re Clark's Estate, 214 Or. 24, 323 P.2d 334. No question is raised concerning the pleadings in this case and the order of the trial court is affirmed.