Goldson v. Goldson
| Decision Date | 10 October 1951 |
| Citation | 192 Or. 611,236 P.2d 314 |
| Parties | GOLDSON v. GOLDSON. |
| Court | Oregon Supreme Court |
Robert A. Leedy, Portland (Barzee, Leedy & Keane, of Portland, on the brief), for appellant.
Clifford S. Beckett, Oregon City (Butler, Jack & Beckett, of Oregon City on the brief), for respondent.
Before HAY, Acting C. J., and LUSK, LATOURETTE, WARNER and TOOZE, JJ.
This is a proceeding for the modification of a decree of divorce respecting the custody of minor children. The motion of Fannie L. Goldson, as plaintiff, to modify such decree was denied by the trial court. Plaintiff appeals.
On December 30, 1947, the circuit court for Multnomah county, in a suit wherein Fannie Lorraine Goldson is the plaintiff, and Paul W. Goldson is the defendant, entered a decree of divorce in favor of defendant and against plaintiff which, in part, provided as follows:
'Further Ordered, Adjudged and Decreed, That it is to the best interest of the minor children that the permenent care, custody and control of the said minor children, namely, Margaret Ann, Cherly [sic] Jeane, and John Paul Goldson, be and the same is hereby granted to and vested in the defendant with the obligation and the duty of the defendant to provide and care for said minor children and the plaintiff is hereby granted the right and privilege of reasonable and seasonable visitation of said children and with the permission to have said children with her at reasonable times that will not interfere with the welfare of the children, and it is
Further Ordered, Adjudged and Decreed, That the children should be kept in one home and that the defendant should make such provision for said children * * *.'
From that decree plaintiff appealed to this court. Goldson v. Goldson, 187 Or. 206, 210 P.2d 478, 484. With one exception to be hereafter noted, the decree of the trial court was affirmed.
At the time the original decree was entered, Margaret Ann Goldson was eight years of age; Cheryl Jeane Goldson, six years of age; and John Paul Goldson, five years of age. Margaret Ann is the daughter of plaintiff, the issue of a prior marriage, and also the adopted daughter of defendant. Cheryl Jeane and John Paul are the issue of the marriage between plaintiff and defendant.
In affirming the decree of the trial court, we said in Goldson v. Goldson, supra:
'The cause is remanded to the Circuit Court for the purpose of conducting an inquiry of the kind just mentioned, and for the further purpose of making a modification if the facts warrant it.'
This decision was handed down October 18, 1949, or practically two years following the entry of decree in the trial court. Before, as well as at the time of, the entry of the original decree temporary custody of all said minor children was in plaintiff, pursuant to order of the court. Also, during the time the case was on appeal and until November 29, 1949, said children remained continuously in plaintiff's custody.
On November 1, 1949, plaintiff filed in said trial court her motion, supported by affidavit, for a modification of said original decree respecting the custody of said children, alleging that since the entry of the decree on December 30, 1947, there had been a substantial change in circumstances and conditions, outlining the same, and that the best interests of said children demanded that their custody and control be awarded to her. On November 28, 1949, the said motion came on for hearing and by oral stipulation in open court there was combined with it the inquiry suggested in the aforesaid decision of this court. Upon such hearing several affidavits were filed by the plaintiff and oral testimony adduced by both parties.
The trial court upon the conclusion of said hearing entered of record its order and decree which, in part, reads:
'Ordered, Adjudged and Decreed that the decree of the Court heretofore made and entered on December 30, 1947, be and the same is hereby in all respects affirmed, and it is
* * *
* * *
'Further Ordered, Adjudged and Decreed: That the motion to modify the decree heretofore made and entered on December 30, 1947, be and the same is hereby denied, and it is
'Further Ordered, Adjudged and Decreed: That the plaintiff deliver forthwith to the defendant, at the defendant's residence at Jennings Lodge, Oregon, which residence is the place where the parties heretofore made their home, the persons and possessions of Margaret Ann Goldson, Cheryl Jeane Goldson, and John Paul Goldson, and it is
'Further Ordered, Adjudged and Decreed: That the plaintiff have the right to reasonable and seasonable visitation to see the children and also to have the children with her at reasonable and seasonable times with full regard to the welfare of the children being first considered * * *.'
Pursuant to the terms of this order, plaintiff forthwith delivered custody of said minor children to defendant, and since the date thereof the defendant has had and now does have such custody.
The Jennings Lodge residence mentioned in the order was then owned by plaintiff and defendant as tenants in common. At the time defendant's mother was living with and keeping house for him. She was then sixty-eight years of age, though the evidence indicates she was in good health. Defendant was employed at the Crown Zellerbach plant in Oregon City. Therefore, upon the delivery of the custody of said children into the hands of defendant, the major part of the responsibility for their care, control, and training devolved upon defendant's aged mother, particularly during defendant's absences while at work.
For approximately eighteen months immediately prior to said hearing the children, with their mother, had resided at Scottsburg, in Douglas county. They lived in the home of one Emma Hedden, an aunt and the adoptive sister of plaintiff. Miss Hedden operated a store in Scottsburg and for thirty-five years had served as postmistress there. The record indicates that she is a refined woman of substantial means and a leader in civic affairs. To pay for the support of herself and the children, plaintiff kept house for the family, occasionally working in the store. In passing, we take cognizance of the fact that during this period of time defendant did not contribute a thing toward the support of said children.
In the proceeding now before us plaintiff states that following the entry of the original decree there occurred a very decided change for the better in her mode of living, her habits, and in her care of her children. In particular, she claims that there has been a decided improvement in her conduct as respects those matters in which she had been found deficient on the original trial. She contends that during this period of approximately two years, when, in a sense, she was on trial, she conclusively demonstrated her reform in conduct and her fitness to have the care and custody of her children. She asserts that this two year period of actual care and custody of her children presents such a change in circumstances and conditions following the entry of the original decree as to warrant a modification thereof; that the best interests of said children demand that they have a mother's care; and that their permanent custody be awarded to her.
We have repeatedly held that a decree of divorce as respects the care and custody of minor children in res judicata as to what is for their best interests at the time of such decree, and that an award of custody will not be disturbed unless there is a subsequent change in circumstances and conditions warranting a modification. We have also held in cases too numerous to mention that in every proceeding involving the custody of minor children, the polar star principle guiding the court in its final determination is the best interests and welfare of the child. All other considerations are secondary.
What constitutes a change in circumstances and conditions justifying a modification of a decree of divorce fixing the custody of minor children must be decided in each case as it arises. There is no fixed standard that will apply to all situations. Keeping in mind the principal consideration in all such applications for modification, that is, the best interests of the child, there might be some changes in conditions of a substantial character that would not warrant modification, while in other situations very slight changes might be deemed sufficient.
In the instant case it is apparent the trial court was of the opinion that before a modification of the decree was warranted, the evidence must necessarily show that there had been a change in circumstances and conditions as respected defendant's situation, he having been awarded custody by the original decree. Respondent urges that contention here. In his brief he states that such a modification is based upon three fundamentals, viz.:
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