Gallagher v. Gallagher

• Citation: 212 P.2d 746,187 Or. 625
• Parties: GALLAGHER <I>v.</I> GALLAGHER
• Decision Date: 02 November 1949
• Court: Supreme Court of Oregon

187 Or. 625

212 P.2d 746

GALLAGHERv.

GALLAGHER

Supreme Court of Oregon.

Submitted on briefs November 2, 1949.

Affirmed December 29, 1949.

Divorce — Custody of child — Child's welfare

1. In determining which of minor child's divorced parents should be awarded child's custody, court must deem child's welfare as transcendent in importance.

Divorce — Custody — Child of tender years — Mother

2. Generally, custody of divorced spouses' child of tender years should be awarded to child's mother rather than father.

Divorce — Custody — 10 year old child — Father

3. Evidence sustained circuit court's order continuing custody of divorced spouses' 10 year old daughter in her father, in whose home she was living happily with him, his second wife, their sons, and wife's son by previous marriage, except for summer vacation periods, during which daughter's custody was awarded by previous order to her mother, residing with her aged mother in small town near city wherein she worked.

                  See 27 C.J.S., Divorce, § 309
                

Appeal from Circuit Court, Malheur County.

RALPH S. HAMILTON, Judge.

Glenn R. Jack, of Oregon City, for appellant.

Gallagher & Gallagher, of Ontario, for respondent.

Martin P. Gallagher sued Helen W. Gallagher for divorce and custody of the parties' minor daughter.

From a decree of the Circuit Court of Malheur County, Ralph S. Hamilton, J., for plaintiff, as modified by an order modifying an order of Forrest L. Hubbard, J., as to the daughter's custody, defendant appealed.

The Supreme Court, Rossman, J., affirmed the decree as modified, holding that the evidence sustained the modifying order continuing the child's general custody in plaintiff.

ROSSMAN, J.

This is an appeal by the defendant from a decree of the Circuit Court entered February 15, 1940, as modified by an order entered December 15, 1948. The decree had previously been modified by orders entered December 18, 1944, and February 17, 1942.

The decree granted Martin P. Gallagher, who was plaintiff in the suit which terminated in the decree, a divorce from his wife, Helen W. Gallagher, defendant in the suit, and custody of their minor child, Lynne. The proceeding, which resulted in the entry of the order attacked by this appeal, affects the custody of the child and is not concerned with the divorce. The mother, who was the defendant in the divorce suit, is the appellant, and the father is the respondent.

The order of February 17, 1942, granted the mother custody of Lynne "during the months of May, June, July and August of each year prior to the time said minor shall have arrived at school age, and thereafter during the summer and Christmas vacation period of each year, and the privilege of visiting said child at all reasonable times during the remainder of the year, so long as the defendant shall continue to lead a life of abstinence from the excessive use of intoxicating liquors; * * *." That order was affirmed in Gallagher v. Gallagher, 174 Or. 22, 146 P.2d 768.

Shortly after the pronouncement of the decision just cited, both parties moved for a further modification of the decree. Each sought exclusive custody of the child. Then came the order of December 16, 1944, which was affirmed in Gallagher v. Gallagher, 178 Or. 223, 166 P.2d 135. As stated in the decision just mentioned, the order of December 16, 1944, "denied both motions and approved the order entered on February 17, 1942 `except for the current year the defendant shall not have the custody of said minor child during Christmas vacation, and furthermore, that during the periods the defendant has custody of said minor child the custody shall be at the home of Mr. and Mrs. Waddell, at Stayton, Oregon, until further order of the court, * * *.'"

August 19, 1946, the defendant, that is, the mother, moved for a modification of the decree as modified by the above-mentioned orders. Her motion sought the sole custody of Lynne and an order directing the father to contribute monthly $50.00 for Lynne's support in the event the child's custody was awarded to her (the mother). Shortly after that motion was filed the father moved for an award of exclusive possession to himself. Those motions culminated in the order which the appellant (mother) now challenges.

The mother's motion was accompanied by an affidavit in which she stated that Lynne's happiness would be promoted if she (the mother) had exclusive custody and that, since the entry of the decree, "the plaintiff (father) has remarried and at the time of his marriage his wife was a widow and had one child and that subsequent to his marriage the plaintiff and his present wife have another child, and they are residing in a small home located in Ontario, Oregon; that I am residing alone with my parents in Stayton, Oregon, in a home that has ample room for a separate bedroom and adequate living quarters for said minor child." The plaintiff (father) accompanied his motion with an affidavit in which he stated: "During my services in the Army I was married and that my present wife has a child of approximately two years of age by her former husband who was killed in action in the recent war. That since our marriage there has been born of the union another son, now four months of age. That since being discharged from the Army, I have returned to Ontario, Oregon, resumed my law practice and have built a home of my own. That the same is modern in all respects and adequate for our needs, * * *."

After a hearing October 28, 1948, in the course of which seven witnesses, including the parties, testified, the court entered an order which states:

"The order of the Honorable Forrest L. Hubbard made on the 16th day of December, 1944, be and the same hereby is modified in the following particulars: That the minor child of the parties aforesaid shall remain in the custody of the plaintiff during the winter holiday season of each year and that she shall also remain in the custody of the plaintiff for 10 days after the close of the regular school year and be returned to plaintiff's custody 10 days before the beginning of the school year at Ontario, Oregon, or such other school or schools said minor may attend. That in all other respects, the order of said Judge Hubbard be affirmed."

It is the order just quoted which is challenged by this appeal. The defendant, in appealing from it, presents the following assignment of error:

"The Court erred in not granting the appellant's motion in that, all things being equal, the mother is entitled to the custody of a minor child."

"Divided custody is not for the best interests of the minor child."

We have read the transcripts of evidence with painstaking care and have bestowed similar attention upon the briefs. Our purpose was an earnest one to find a means whereby the parental discord which engulfs the mother and father of this child would not involve her in a repetition of this proceeding. We observe from the record that Lynne, the innocent victim, is no longer deemed by her parents as the mere subject matter of this interminable legal maneuvering, but as about ready to step across the threshold of the courtroom door and become a witness; for, in the present instance, they stipulated that the presiding judge should interview her privately. It would be nothing less than a tragedy if this girl should be forced to take sides against either parent. Lynne was born August 11, 1938, and was ten years of age when the attacked order was made.

Although in reading the evidence we hoped to find a solution of the problems which have kept this suit in the courts for a decade, we have come to the reluctant conclusion that this case is another instance in which the judicial machinery cannot turn out a perfect product. The parties must accept less than they expect and be satisfied with it. The law is no alchemist and cannot transmute the circumstances in which the parties have chosen to live. Those circumstances preclude courts from doing more for them than has been done. The plaintiff lives in Ontario where he and his father maintain a well-established law practice. The defendant resides in Stayton with her parents, but earns her livelihood in nearby Salem. Ontario and Stayton are separated by three hundred miles or more, but the...