Flanagan v. Flanagan

• Decision Date: 13 August 1952
• Citation: 195 Or. 611,247 P.2d 212
• Parties: FLANAGAN v. FLANAGAN.
• Court: Oregon Supreme Court

Page 212

247 P.2d 212

195 Or. 611

FLANAGAN v. FLANAGAN.

Supreme Court of Oregon.

Argued Jan. 22, 1952.

Decided Aug. 13, 1952.

Frank E. Nash and Fredric A. Yerke, Jr., Portland (King, Wood, Miller, Anderson & Nash, all of Portland, on the brief), for appellant.

Joseph McKeown and Andrew J. Newhouse, Coos Bay, (Wallace A. Johansen, Coos Bay, on the brief), for respondent.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and WARNER, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Selma M. Flanagan, from an order of the circuit court which denied a motion made by her for the modification of a part of a decree of divorce which made provision for the alternating custody of the minor son [Patrick] of the parties. The child was born October 16, 1947. The decree was entered February 2, 1950, and the motion for its modification was filed August 31, 1950. Thus, Patrick was 27 months of age when the divorce was granted and scarcely six months older when the motion for modification was filed.

The attacked provision of the decree follows:

'The Plaintiff is granted the care, custody and control of Patrick Flanagan, minor son of Plaintiff and Defendant, except for the months of March, July and November of each year until said child shall be attending school, whereupon Plaintiff is granted the custody of said child during the year except for a period of two and one-half months during the summer vacation.'

The motion under consideration sought the award to the plaintiff of 'the complete care, custody and control of said Patrick Flanagan'. The basis for the motion, stated in the latter, is the following:

'This motion is made upon the ground and for the reason that, by reason of changed circumstances which have occurred since the rendition of the decree made and entered herein on the second day of February, 1950, it is detrimental to the welfare of said minor son of the parties for the defendant to have periodic care and custody of said minor child.'

The motion was accompanied by an affidavit made by the plaintiff which spoke of 'changed circumstances' but gave no particulars. The defendant, Dr. John D. Flanagan, filed a counteraffidavit in which he averred:

'I specifically deny that there have been any changed circumstances since the rendition of the Decree in the above cause which would operate to the detriment of the welfare of the minor child, Patrick Flanagan, for me to have the care and custody of said minor child as provided in the existing Decree.'

After the affidavits had been exchanged, a hearing was held in the course of which testimony was given which, as transcribed, covers 104 pages. We shall now give a summary of it.

Shortly prior to the institution of the suit for a divorce, the plaintiff returned to the home of her parents and took the child with her. The home is large and has quarters suitable for the plaintiff and the little boy. The plaintiff is not employed and, therefore, has ample time for the performance of her maternal duties. The defendant practices his profession as a physician in Coos Bay and, after the plaintiff's departure, remained in the home which the family had occupied. It is a good home and has a large yard.

After the entry of the decree, the defendant, pursuant to its provisions, had the custody of Patrick in the months of March and July, 1950. Then the plaintiff filed the motion which precipitated the present proceeding. The defendant has fully and promptly complied with all of the conditions of the decree.

Evidently no bitterness exists between the plaintiff and the defendant. During the periods when the plaintiff had the custody of the child, the defendant's affection for it and his concern for its well-being prompted him frequently to drive to Portland for visits with it. Those visits were made in the home of the plaintiff's parents and in their presence as well as that of the plaintiff. All agree that the visits were pleasant and that nothing of an untoward nature developed. In July of 1950 when the defendant had Patrick in his home, the plaintiff visited some friends in Coos Bay and the defendant then permitted her to have the child for a day. During the presentation of the evidence, the trial judge remarked: 'The parents have taken care not to run down the character of each other, and on which I wish to compliment the parties in this case, because they have had respect for each other and have evidenced it in this hearing.'

The plaintiff's father, as a witness for his daughter, gave the following testimony upon cross-examination:

'Q. And you have respect for Jack and like him? A. Yes.

'Q. And he has been a fine father to the child? A. Yes, so far as I know, he has been.

'Q. Does Jack show love and affection to the child? A. He seems to, yes.

'Q. (The Court) Does that seem to be mutual between the father and the child? The child also has affection for his father? A. Yes.

'Q. And the child, when he is with his father, seems to be happy? A. Yes.

'Q. Did you observe them in Portland? A. Yes, and they were happy.

'Q. Have you observed them in Coos Bay? A. Yes, a few times.

'Q. Has the child been healthy and happy those times? A. Yes.'

After the plaintiff had rested and the defendant had presented some of his evidence, the following colloquy occurred. [The name, Nash, is that of plaintiff's counsel and McKeown that of defendant's].

'The Court: I might state for the benefit of counsel that I do not want to restrict cross examination. But it seems to me that the fact is established in this case, and it is therefore not at issue as an issue of fact, that during the visits of this boy in March and July, which are the only visits under this agreement, that the boy received affection from his father and that he suffered in no way in his physical condition. I think that is the testimony of the plaintiff, and I think there is no issue of fact to be established in that connection.

'Mr. Nash: That is correct. There is no issue on that fact.

'Mr. McKeown: Except as it may bear upon his condition at the time he returned to his mother, relative to the complaints she has. In other words, there is testimony that when he returned home he lacked appetite.

'The Court: It would be corroborative of the plaintiff's testimony, unless it is that it was not good.

'Mr. McKeown: Yes.

The Court: I think it is established that he was in normal health and that physically he was as well off after the visits as before and that he was well taken care of and that he received affection from his father and that the child had great affection for his father. It seems to me that that is the situation here now.'

The verity of that statement is not challenged. The record fully warranted it.

It will be recalled that the motion for modification of the decree was based upon purported 'changed conditions'. The motion seeks termination of the alternating custody provision and an award to the plaintiff of 'the complete care, custody and control' of the child. It is claimed that conditions changed after the decree was signed. The following, according to our understanding of the plaintiff's contention, is a full list of all the purported changes: (1) After the plaintiff had left the parties' home and at about the time when the decree was signed, the defendant's mother, who was 71 years old, moved into the home. The mother was fond of the child and the plaintiff had anticipated that she would help care for it during the times when the defendant had its custody; (2) in July, 1950, the defendant's mother left his home and has not returned; (3) in July, 1950, when the defendant had the custody of Patrick, he was assisted in part in caring for him by his sister, but principally by a cousin of the little child, Patsy Kuni. The latter was capable and very fond of Patrick. She had helped to care for him before the separation; (4) August 12, 1950, the defendant married a young woman who was employed by the group of doctors with whom the defendant practiced; the young woman is a registered nurse; (5) 'the most noticeable way in which conditions changed following the decree,' so the plaintiff's brief argues, 'was with respect to the impact of the divided custody arrangement upon Patrick Flanagan.' As support for that statement, the plaintiff swore that when the child was returned to her after the March and July visits it suffered for a week or more from fear, lack of appetite, disturbed sleep and nightmares. In a week or more normal conditions returned. The plaintiff does not even intimate that the defendant gave the child ill-chosen food, abused it or sought to prejudice it against the plaintiff. Her sole claim is that the change in environment upset Patrick emotionally.

There is no claim that the defendant's present wife was the cause in any degree of the matrimonial difficulties that led to the divorce between the plaintiff and the defendant. The plaintiff makes no claim whatever that the defendant displayed any interest in his present wife while the parties remained married. The defendant's present wife testified that while she was undergoing training for her profession her schooling included 'three months of specialized work with children.' No contention has been advanced that the new Mrs. Flanagan is ill-adapted to participate in the care of the child.

The defendant conceded that some disturbances usually occur when a young child is transferred from one home to another. He and others swore that when Patrick came to his home no difficulties, even of a temporary nature, were encountered with his sleep, appetite or other regimen. He mentioned some expedients to which he resorted. Apparently the child's stay with his father was a happy, healthy experience for Patrick. The defendant discovered two...