Gibson v. Gibson
| Decision Date | 09 September 1952 |
| Citation | 196 Or. 198,247 P.2d 757 |
| Parties | GIBSON v. GIBSON. |
| Court | Oregon Supreme Court |
F. J. Kucera, of Portland, argued the cause for appellant. On the brief were Kucera & Galen, of Portland.
William M. Dale, Jr., of Portland, argued the cause for respondent. With him on the brief were Hicks, Davis & Tongue, of Portland.
Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.
This is an appeal by the plaintiff from an order of the circuit court, entered January 5, 1951, which made provision for the custody of a child, Donna, four years of age, of which the parties are the parents. The order awarded to the defendant, the child's mother, custody for eleven months of each year and to the father, the plaintiff, custody for the remaining month. The child was born January 7, 1947. Based upon findings of cruel conduct, the circuit court, on August 23, 1949, awarded to the plaintiff a default decree dissolving the parties' marriage contract. The decree made no mention of the child. The attacked order was entered pursuant to a motion filed by the defendant December 18, 1950.
Based upon a charge that the defendant was guilty of adulterous conduct, the plaintiff claims that she is morally unfit to have custody of the child. The defendant does not contest the charge, but urges that she is not unfit to discharge the duties assigned to her by the challenged order. The issue thus precipitated is crucial.
The plaintiff and the defendant were married March 21, 1946, when the defendant was 19 years of age. The life of the couple following the marriage soon became districted. The defendant gave this pithy description of it:
The following is also copied from her testimony:
'
None of the above testimony was contradicted at the trial and none of it has been challenged. The record gives no indication as to the plaintiff's present habits concerning the use of alcoholic beverages.
In May of 1949, while the defendant was still the wife of the plaintiff, she met Glenn E. Rickman, 26 years of age, with whom she shortly began the course of adulterous conduct which the plaintiff claims renders her unfit to have the custody of Donna. Rickman at that time was married and a father. Later his wife was awarded a decree of divorce from him. July 5, 1950, he and the defendant were married.
In June of 1949 Rickman and the defendant drove to Selma, California, where he obtained temporary employment and the two began to live together. The defendant brought Donna with her and made her a part of the illicit domestic establishment.
July 18, 1940, the plaintiff filed the divorce complaint which, August 23, 1949, resulted in the entry of the decree which we have mentioned. The complaint averred that the defendant was not fit to have the custody of the parties's child. Personal service was not had upon the defendant.
In July, 1949, while the suit instituted by the plaintiff was pending, the defendant returned temporarily to Portland and brought Donna with her. She had not been apprised of the suit which the plaintiff had filed and her purpose in coming to Portland was to institute a suit herself. When she reached Portland she consulted Mr. M. C Corcoran, a Portland attorney, who told her of the proceeding which the plaintiff had begun. Upon receiving that information, she telephoned to the plaintiff, and, according to her unchallenged testimony, 'told him if he wanted to see Donna to come up there, which he did, and we were in Mr. Corcoran's office discussing the matter.' The plaintiff was shortly joined by his attorney. Before the conference had terminated, the defendant had agreed to permit the plaintiff to have Donna for the week-end. The meeting occurred upon a Friday. The plaintiff took Donna and returned her to the defendant Sunday evening. The following Wednesday or Thursday the defendant departed for Selma, California. In the meantime, the plaintiff made no effort to secure personal service upon her and the latter made no appearance in the suit which the plaintiff had filed.
The decree which the court entered August 23, 1949, as we have indicated, made no mention of the child.
Shortly after the defendant returned to Selma, Rickman's employment at that place ended and thereupon he, the defendant and the child moved to Smith River, Del Norte County, California. Rickman's occupation is that of a herdsman on dairy farms. Following his honorable discharge from the armed services at the close of World War II, he attended a veterinarian school which trained him for the vocation which he is following. Upon reaching Smith River, Rickman resumed his occupation as a herdsman.
In March, 1950, the plaintiff called upon the defendant at Smith River. He found her living with Rickman, and pregnant. He also observed that Donna was living with them, and made a demand that she be surrendered to him. When the demand was rejected he repaired to the office of the district attorney for Del Norte County where he was advised that 'I had two choices: I could have them arrested for adultery or I could hire him and he would see what kind of a settlement he could make.' He added, 'I chose the latter.' The individual to whom he spoke was Mr. Robert F. Appel, deputy district attorney.
After the plaintiff had employed Mr. Appel as his attorney, the two visited the defendant for the purpose of determining whether an agreement could be effected governing Donna's custody. The record renders it clear that more than one conference upon the subject of custody took place before the parties were able to agree. At least one of the conferences was attended by a sister of the plaintiff and during others Rickman was present. The evidence indicates that the plaintiff returned to Portland before an agreement was achieved. A few days later, when he came back to Smith River, differences were reconciled and an agreement was reached. more than one writing setting forth the agreement was drafted by Mr. Appel before one was written which both the plaintiff and the defendant approved. It was entitled a stipulation and was signed March 25, 1950. No one contends that it does not faithfully represent the parties' agreement. We now copy it:
'In The Circuit Court of The State of Oregon For the County of Multnomah
It is hereby stipulated by and between Raymond Gibson plaintiff, and Doris Gibson, defendant, in the above-entitled action that the court may enter and make its order in the above-entitled matter as follows:
That the issue of the marriage between plaintiff and defendant, Donna Rae Gibson, aged three years, be placed in the custody of the parties to this action in the following manner, to wit:
Plaintiff, Raymond Gibson, shall have custody of the said Donna Rae Gibson during the period corresponding to the school vacations at the place where defendant, Doris Gibson, resides, and defendant, Doris Gibson, is to have custody of said child during the school year. This is to be effective immediately.
'It is further stipulated by and between the parties that the court may make an order based on this stipulation at any time after it is filed and upon its own motion and notice of the same is hereby waived.'
After the paper was signed, it was delivered to the plaintiff. At that time he requested the defendant to permit him to take Donna to Portland under a promise to give her back May 1. The defendant yielded to the request, but when she came to Portland in May to receive the return of her daughter the plaintiff told her, according to her uncontradicted testimony, 'I couldn't have her, that the stipulation that we signed was not worth the paper it was written on and he was going to have custody of her.'
The plaintiff, who conceded that he refused to permit the defendant to have Donna when she came to Portland in May, gave the following testimony upon the subject:
The plaintiff swore that when he signed the stipulation which authorized the circuit court to award custody to the defendant, he did not deem her a proper person to have charge of the child. His explanation was the following:
When the plaintiff refused to abide by the terms of the stipulation and return the child to the defendant, she returned to Smith River. A few days later the plaintiff filed in the circuit court a motion The motion was filed May 24, 1950, and stated that it was made ex parte.
The motion just mentioned was accompanied with an affidavit which the plaintiff...
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