Fisher v. Fisher

• Decision Date: 10 July 1930
• Citation: 289 P. 1062,133 Or. 318
• Parties: FISHER v. FISHER (ALLEN, INTERVENER.
• Court: Oregon Supreme Court

289 P. 1062

133 Or. 318

FISHER v. FISHER (ALLEN, INTERVENER.

Supreme Court of Oregon

July 10, 1930

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Roy Fisher against Emma Fisher, in which Lucy Allen intervened. On motion of plaintiff to modify decree of divorce, in which custody of a minor child was awarded to the defendant. Decree for plaintiff, and the defendant and intervener appeal.

Affirmed.

E. R Ringo, of La Grande (H. E. Dixon, of La Grande, on the brief), for appellants.

R. J Green, of La Grande (Green & Hess, of La Grande, on the brief), for respondent.

BELT J.

Defendants appeal from an order modifying a decree of divorce, with reference to the custody of a minor child. On January 4 1927, plaintiff obtained a decree of divorce in which a minor child was awarded to the mother, "so long as she properly cares for said child." On December 7 1929, the trial court, on motion of the plaintiff, modified the decree, awarding the custody of the boy to the father, subject to the right of the mother to "visit said child and to have the child with her over the week ends, so that such visits will not interfere with his attending school," and providing further that "such custody of the plaintiff of said minor child shall continue so long as plaintiff shall be a resident of Union County, Oregon."

At the time this divorce proceeding was instituted the parties were residing on a farm near Elgin in Union county. On the morning after the decree was rendered, the plaintiff, in accordance with the request of the defendant, took her and the little boy to the home of her sister, Mrs. Lucy Allen, intervener herein. The little boy, who is now about eleven years of age, has ever since remained continuously in the custody of his aunt. The mother remained at this home for approximately a year and then went to Cove where she had secured employment. On March 19, 1928, she married Vivian Richards, a resident of such place. The record discloses that Mr. Richards is a man of very limited means and earns his livelihood by manual labor. On April 12, 1928, plaintiff also remarried. His wife had just obtained a divorce, and the marriage was consummated three days after the expiration of the six months' statutory period. Speaking of divorces, it might also be added that the aunt to whom the boy was taken had also been in the divorce court on two different occasions. Notwithstanding this record of shattered romances, it appears that all parties concerned are held in good esteem by those who know them best, and are, without doubt, good citizens. The bald fact remains, however, that the boy is the victim. He is not responsible for the situation which has arisen. Neither are the courts.

In such controversies, the guiding star for the court is the welfare of the minor child. The desires of parents who will bring about such a tragedy in the life of a child are of secondary importance. Courts, however, usually award the custody of a child of tender years to the mother, and very properly so unless she is morally unfit. As against third persons, the natural rights of the parents prevail, unless it is clearly shown that the welfare of the child demands that it be taken from them. Ex parte Barnes, 54 Or. 548, 104 P. 296, 25 L. R. A. (N. S.) 172, 21 Ann. Cas. 465. In the instant case there is nothing which reflects upon the moral character of any person seeking the custody of this child. If it were a controversy between the father and the mother, the court would be inclined to favor the mother. We think that she, however, appreciates the fact that she is not now in a position to properly care for the child, and, therefore, desires...