Gonyea v. Gonyea

• Decision Date: 07 November 1962
• Parties: Lucille Deaver GONYEA, Respondent, v. Wilford H. GONYEA, Appellant.
• Court: Oregon Supreme Court

Page 808

375 P.2d 808

232 Or. 367

Lucille Deaver GONYEA, Respondent, v. Wilford H. GONYEA, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 7, 1962.

Decided Nov. 7, 1962.

Thomas E. Brownhill, Eugene, argued the cause for appellant. On the brief were Riddlesbarger, Pederson, Brownhill & Ingerson, Eugene.

Edwin E. Allen, Eugene, argued the cause for respondent. On the brief were Bartle & Allen, Eugene.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and DENECKE, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, Wilford H. Gonyea, from an order of the circuit court which modified the provisions of a decree of divorce and child custody entered on December 2, 1960. The modification partained to the custody of the children and not to the divorce. Plaintiff and defendant had two children, Douglas and Lynn Marie, whose ages at the time the decree was entered were respectively 9 years and 9 months, and 6 years and 10 months. Stated in general terms the decree awarded (1) the plaintiff custody of the children during the school months, (2) the defendant custody during the summer months, and (3) visitation privileges on alternate weekends to the party who did not then have custody.

On April 13, 1961, plaintiff moved that the decree of December 2, 1960, be modified in several particulars thereby precipitating the issue before us. The motion was granted in one particular only; that is, it modified the decree so that the visitation privileges of the party not having custody, which were formerly allowed on alternate weekends, were limited to one weekend per month. The defendant challenges that modification on appeal. No other part of the order or decree is attacked on appeal.

In cases such as this it is the duty of the court to consider as paramount the welfare of the children. Gallagher v. Gallagher, 187 Or. 625, 212 P.2d 746 (1949), Goldson v. Goldson, 192 Or. 611, 236 P.2d 314 (1951). All other considerations are secondary.

In attacking the order of the circuit court modifying the decree, the defendant presents the following as his first assignment of error:

'That there was a failure of proof of a change of conditions which would support a modification of the decree as to visitation.'

In Wells v. Wells-Crawford, 120 Or. 557, 251 P. 263, 251 P. 907 (1927), this court said:

'The modification of a decree, for the care and custody of a minor child of divorced parents, must be based on some change in the circumstances relating thereto and occurring since the rendition of the original decree, or upon some fact not known at the time of such decree. * * *

'In order to warrant the court in modifying a decree for the care and custody of such minor child, it should be shown that such a modification would enhance the welfare of the child, or that the change in circumstances * * * [has] been such as injuriously affected the child. * * *'

See also Henrickson v. Henrickson, 225 Or. 398, 358 P.2d 507 (1961); and Kellogg v. Kellogg, 187 Or. 617, 213 P.2d 172 (1949). Therefore, in order to sustain the modification in the case at bar which was granted by the challenged order it is essential that the plaintiff point to evidence which shows a change in the circumstances which occurred since the decree was rendered, or, in the alternative, to the existence of some material fact which was unknown at the time of the decree.

The uncontradicted testimony of the plaintiff established that the defendant's frequent visits adversely affected the children in a number of ways. An excerpt from her testimony follows:

'* * * They would come back on Sunday. They would usually get home about 6:00 o'clock, sometimes it was later when for some reason he couldn't get them back, and they would be completely worn out. Sometimes they would have dinner; sometimes they wouldn't. * * * It would take sometimes one or two days for them to be able to get back in their routine, but they would always seem very, very tired, or sometimes when goodbyes were prolonged too long, there were tears. Everybody was upset.

'Q In what manner did this also tend to affect them in school, in regard to the work they were supposed to be doing?

'A Well, as I said, it would take them a day or two to get back into the routine and get settled down where I thought they were in physical condition or emotional condition to do the type of work that they should at school.'

The evidence indicates that the trips away from home (Goshen) tended to disrupt participation by the children in social and athletic events which took place on weekends. They also rendered impossible the use of the weekend as a time for music lessons. The defendant, upon obtaining the children, took them to places such as Portland and San Francisco. Frequently the trips were made by airplane. Upon reaching Portland and San Francisco the children were taken to hotels. Disciplinary problems were materially increased as a result of the visits.

Undoubtedly some of these consequences could have been foreseen prior to the rendition of the decree. But one could not reasonably expect the parties to know in advance the emotional impact which the frequent visits would have upon the children. Nor could one expect them to have predicted accurately the degree to which the discipline of the children would be impaired. If this experience was not an entirely new one to the parties, it was at least an unfamiliar one. It is to be expected that they would fail to anticipate some factors which a person of experience in such matters would foresee. It would be unjust to sacrifice the welfare of the children because the parties were mistaken in their planning for them. We are of the opinion that the mere putting into operation of a decree may in some cases qualify as a change of circumstances.

Defendant's argument implies that even if it be conceded that there was a change of circumstances, it was not of sufficient importance to justify the modification under scrutiny. There is no constant or standard quantity of change which will qualify. The amount of change necessary to justify a modification of a decree varies with the facts of the individual case. Goldson v. Goldson, supra, said:

'* * * 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 condition of a substantial character that would not warrant modification, while in other situations very slight changes might be deemed sufficient.'

Clearly the amount of change in the circumstances is only one of several factors which a court must consider in deciding whether to modify a decree. As we have already stated, pre-eminence is given to the interests of the children.

In the case before us the trial judge, who had opportunity to observe the demeanor and manner of the witnesses found that the welfare of the children required that the visits by the party not having custody be curtailed. The question is one of fact. This court has many times stated that it will not disturb the decree of the trial judge as to the custody of the children if the question is one of fact and the evidence is sufficient to warrant the attacked ruling. Henry v. Henry, 156 Or. 679, 69 P.2d 280 (1937); Kloster v. Kloster, 187 Or. 683, 213 P.2d 448 (1950). Since this was the first exposure of the children to the situation which we have described, it was extremely difficult, if not impossible, to know in advance how they would react to it. It was discovered that they reacted unfavorably. Their school activities suffered. They were often emotionally upset--much more frequently than before. It became increasingly difficult to discipline them. Since we, as well as the parties, are now aware of the adverse reaction of the children to the program, the policy of promoting the best interests of the children dictates that...