Ettin, Application of
| Decision Date | 09 March 1960 |
| Citation | 221 Or. 193,349 P.2d 1097 |
| Parties | Application for a writ of habeas corpus for Anna Marie ETTIN, a minor child, Morris ETTIN, Respondent, v. Dan D. ROBINSON and Verline Elizabeth Robinson, Appellants. |
| Court | Oregon Supreme Court |
Robert G. Ringo and James W. Walton, Corvallis, for appellants.
Melvin Goode, Albany, for respondent.
Before McALLISTER, C. J., and ROSSMAN, WARNER, O'CONNELL and HARRIS, JJ.
This is a habeas corpus proceeding brought by Morris Ettin to obtain the custody of Anna Marie Ettin, a minor child, who was and now is in the custody of the defendants who are the child's maternal aunt and uncle. Defendants have appealed from a decree of the trial court declaring the plaintiff is the natural father of Anna Marie and directing the defendants to deliver the custody of the child to plaintiff forthwith.
The defendants perfected their appeal and thereupon obtained an order of this court allowing them to retain custody of the child pending the appeal. The principal question in the case is the paternity of the child, the plaintiff contending that he is the father and the defendants contending that Ralph Titus is the father.
The facts relating to paternity are as follows. Ralph Titus and Lela Mae Titus were married in Casper, Wyoming on May 7, 1952. Soon thereafter they separated. In the latter part of 1953 plaintiff, who was separated from his wife, met Lela Mae in Las Vegas, Nevada when she was in the company of a man named Anderson. Lela Mae lived with plaintiff in his apartment for a short period of time and then left to return to the home of her parents, Mr. and Mrs. Rogers in Corvallis, Oregon in December, 1953. In January or February of 1954 she returned to Las Vegas, where she again lived with plaintiff and where she and plaintiff held themselves out as husband and wife.
The child was born on January 6, 1955. On December 6, 1955, Lela Mae secured a decree of divorce from Ralph Titus and plaintiff secured a decree of divorce from his wife, Cecil Ettin. On the following day plaintiff and Lela Mae intermarried. Lela Mae died in Corvallis, Oregon on April 21, 1956. The child was then in the custody of Lela Mae's parents, Mr. and Mrs. Rogers. In July, 1956 the defendants took the child into their home where she has remained since that time. The defendants instituted adoption proceedings in January, 1957 and shortly thereafter plaintiff brought the present suit.
The plaintiff attempts to prove that Ralph Titus did not have access to Lela Mae during the period when the child was conceived, which, according to medical testimony, was sometime in mid-April, 1954. The defendants claim that in April, 1954 Lela Mae visited Ralph Titus in Roswell, New Mexico and there lived with him as husband and wife for a week or two. The evidence on this crucial point is in conflict. Ralph Titus was called as a witness for the defendants. He testified that he cohabited with Lela during the period beginning in March, 1954 and ending in July, 1954. According to his testimony she first visited him in Roswell, New Mexico in March 'for a little while' and again in the middle part of April for about a week. Then, he claims, they met for a couple of days in the latter part of June, 1954 at Hobbs, New Mexico and on about July 1, 1954 they went to Carlsbad, New Mexico, where they stayed for several days. He dates their visit at Carlsbad by recalling that they went swimming there on July 4, 1954. He relates Lela Mae's visit at Roswell in March or April to a photograph of the two of them standing at the foot of a rocky precipice which he claimed was taken at Roswell at that time. In a letter writen by him to Lela Mae on July 18, 1954 he referred to the same photograph as one 'where we are standing by the rocks on Casper Mts.' Casper mountain is in Wyoming.
This is but one of several instances in which Ralph Titus' testimony is obviously false. Since his testimony is untrust-worthy, we shall give it no probative force in support of his claim that Lela Mae visited him during the period in question. However, evidence was offered, which if received would establish that Lela Mae had visited Ralph Titus in April, 1954. The deposition of Mildred Hood, the owner and manager of the apartment house in Roswell, New Mexico, in which Ralph Titus lived from February 7, 1954 to May 3, 1954 was received under the rule after an objection to its admission was sustained. She testified that Ralph Titus introduced to her a woman as Lela Mae Titus, representing that she was his wife. From photographs of Lela Mae found in Ralph Titus' apartment after he had left, Mildred Hood identified Lela Mae as the woman to whom reference was made. Similar testimony was elicited by way of deposition from a cleaning woman who worked in the apartment house. These depositions were offered after the case had been continued. Plaintiff's counsel objected to their admission on the ground that they were immaterial; not within the purpose for which the continuation was allowed, and because they were deficient in the form in which they were taken. They were rejected by the trial judge without a statement of the grounds for exclusion.
We need not pass upon the question of admissibility of the depositions because we are of the opinion that the testimony so taken, even if received, would not be sufficient to overcome the evidence that Lela Mae did not visit Ralph during the period from March, 1954 to August, 1954. That evidence is for the most part found in the letters written by Ralph to Lela Mae in June and July of 1954. These letters are clear and convincing proof that Ralph Titus did not see Lela Mae until well after the date of conception. One of these letters is dated June 28, 1954, and when introduced into evidence it was contained in an envelope postmarked Carlsbad, New Mexico, July 4, 1954. The letter read as follows:
'June 28-54
'107 1/2 N. Elm.
'Carlsbad N Mexico
'Dearest Lela
'I am still trying kid--Maybe you have found another by this time.
'Now after its too late I have began to realize she may have been right.
'I havent written to her since last November 1953 You think I did away with your things.
'No man ever loved a woman as I have you, & still do, but maybe I am crazy to keep on hoping There is no use to destroy our lives in this way.
'Please be lady enough to tell me you are through & let me live like any other man that wants to do the right thing.
'I dont have the gift of gab & fictitious ways of making a lot of money I will work hard & be honest with all I meet I dont want any thing unless I earn it the right way.
'If you dont want that get rid of me, because I'm not the guy you want.
'as ever Yours,
'sending Love & hopes that you will be mine, and mine alone. please ans.
'Ralph Titus
'107 1/2 N. Elm, Carlsbad N. Mexico'
As already indicated, the postmark on this letter was July 4, 1954. Ralph Titus testified that he went swimming with Lela Mae on that date. If the letter was written on June 28, 1954, the day it was dated, then we have Ralph writing to Lela Mae when she was with him, and if we accept the postmark as the date of the mailing of the letter enclosed then we have him mailing a letter to her on the same day he so distinctly remembered going swimming with her. This improbability is not the point we wish to emphasize. It is, rather, the tone of the letter. It is not the letter of a man who has just been living with his wife.
We find next in the record a letter postmarked Carlsbad, New Mexico, July 6, 1954. The letter enclosed is dated June 4 1954. It is quite probable that the letter was mailed in another envelope. If that were so, Titus wrote to Lela Mae on June 4, 1954 and July 6, 1954. Again, the important fact is the contents of the letter indicating a long separation between the two people. The letter reads as follows:
'June-4-1954
'107 1/2 N. Elm
'Carlsbad New Mexico
'Dear-Lela----
'I have been thinking a lot about you. seems like you are allways on my mind.
'I was selling for a company out of Oakland California, but this fellow in Roswell couldn't pay me so I quit. he still owes me $1400.00 I have three checks on him $800.00 & $400.00 & $200.00. he doesn't have the money & also a big obligation to his family.
'Yes sure I am a big sucker to let him get me for that. but some day he may get on his feet. in the meantime I know I did my best.
'I cant do like a lot of others and besides this is only money
'I can make some more. but if I had some thing I worshiped & lost I would feel real bad.
'I am a pretty darned good cook now.
'I am not satisfied or happy but I dont want to get acquainted and find I am holding the sack.
'Lela if I...
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