Henrickson v. Henrickson

• Decision Date: 11 January 1961
• Citation: 358 P.2d 507,225 Or. 398
• Parties: George A. HENRICKSON, Appellant, v. Katherine E. HENRICKSON, Respondent.
• Court: Oregon Supreme Court

Page 507

358 P.2d 507

225 Or. 398

George A. HENRICKSON, Appellant, v. Katherine E. HENRICKSON, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Dec. 13, 1960.

Decided Jan. 11, 1961.

Norman K. Winslow, Salem, argued the cause and filed a brief for appellant.

Thomas B. Brand, Salem, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.

WARNER, Justice.

The origin of this litigation was a suit for divorce by George A. Henrickson against his wife, Katherine E. Henrickson, begun in October, 1952. The present contention is about the custody of Pamela Gene Henrickson, the only child of the parties. She is now about eight years old. The original decree awarded the divorce to defendant and also the custody of the little girl, subject to the right of the plaintiff-father to visit her at reasonable times and places.

In December, 1958, plaintiff, as petitioner, moved for an order modifying the decree of 1952 with respect to the custody provision. Thereafter, such proceedings were had and the court on December 8, 1959, awarded the custody of Pamela to her father with, however, a right of reasonable visitation in her mother. The defendant did not appeal from that order. Sixty-seven days later, on February 23, 1960, the defendant-mother filed a motion for another modification in her favor.

The 1952 proceedings in the divorce matter and the modification made in December, 1959, were heard before the Honorable Joseph B. Felton. The proceedings following defendant's motion for modification in 1960 were heard and determined by the Honorable George A. Jones. The order of modification in the second proceeding was entered July 11, 1960, and awarded the custody of Pamela to her mother, reserving to the father the child's custody and control during the months of July and August each year. From this order the plaintiff, George A. Henrickson, appeals.

Both parties have remarried since the divorce in 1952 and defendant is now Katherine E. Breen. She resides in the state of Washington with her husband and other members of the family. The plaintiff and his wife make their home in Salem.

Because of what we have to say concerning the first modification proceedings and more particularly because of certain statements in defendant's brief, which in effect represent the order of default entered immediately before the decree of December 8, 1959, that 'The real issues of the case were never presented to the Honorable Joseph B. Felton * * *,' we have carefully reviewed the record in the 1959 proceeding. We find the proceedings before Judge Felton continued during the entire year which intervened between the filing of Mr. Henrickson's motion in December, 1958, and the entry of the decree.

The salient entries found in the judgment roll indicate on March 3, 1959, Mrs. Breen entered her appearance by filing a counter-affidavit. On April 16, 1959, both parties appeared before Judge Felton in person and with their respective counsel. At that time the court made a journal entry reciting 'after hearing evidence adduced and arguments being waived [the court], took the matter under advisement.' Various other orders were entered in the meantime. Among them was one granting Mr. Henrickson temporary custody of Pamela during July and August of 1959. Later, another order found Mrs. Breen in contempt for ignoring the provisions of the temporary order. The entry of the default preceding the decree of modification by Judge Felton was the result of defendant's failure to honor a previous order to appear on a day certain in November, 1959, and give her deposition as an adverse party.

We conclude that Mrs. Henrickson had had her day in court in the first proceeding for modification and was given opportunity to fully present such defense as she may have had, including some matters she later presented at the time of the hearing before Judge Jones. From the record then made, it would appear that she entertained an indifference to the matter initiated by her former husband and to certain orders of the court while it was pending.

A general and well-established rule in matters of this kind requires an applicant for a modification to show a change of circumstances arising subsequent to the making of the last order respecting custody. It was first announced in this jurisdiction in Merges v. Merges, 1919, 94 Or. 246, 253, 186 P. 36, where Mr. Justice Burnett marshaled in support of the rule the provisions of § 756, LOL (now ORS 43.130), relating to the conclusive effect of judicial orders. Since then we have declared in Goldson v. Goldson, 1951, 192 Or. 611, 236 P.2d 314, that the true rule is as was aptly expressed in Kellogg v. Kellogg, 187 Or. 617, at page 621, 213 P.2d 172, at page 174, by Mr. Justice Hay, where he stated:

'The divorce decree in the present case, however, gave custody to plaintiff. Before any change in custody is made, it must be shown that, since the entry of the decree, there has been a change in conditions affecting the welfare of the child, and that the proposed change in custody would be for the child's best interests.'

See, also, Jenkins v. Jenkins, 184 Or. 525, 198 P.2d 985; Leverich v. Leverich, 175 Or. 174, 179, 152 P.2d 303; 17A Am.Jur. 32, Divorce and Separation § 839; 27B C.J.S. Divorce § 317(2)b, p. 542.

The net effect of our earlier decisions is to render every prior custody order res judicata in any later modification matter. Goldson v. Goldson, supra, 192 Or. at page 617, 236 P.2d at page 316; Meredith v. Meredith, 1954, 203 Or. 45, 47, 276 P.2d 387; Rasmussen v. Rasmussen, 1925, 113 Or. 146, 148, 231 P. 964. This element of finality continues, notwithstanding the order was entered ex parte. Phillips v. Phillips, 175 Or. 14, 26, 149 P.2d 967; Gibson v. Gibson, 196 Or. 198, 213, 247 P.2d 757. The moving party is, therefore, confined to matters alleged in his motion and supporting affidavit and, as to these matters, has the burden of proof. Sakraida v. Sakraida, 192 Or. 217, 226, 217 P.2d 242, 233 P.2d 762.

When we speak of a 'change in circumstances' we are referring primarily to changes occurring since the rendition of the last custodial order. In order to justify a modification for the care and custody of a minor child the petitioner is under the burden to show that it would enhance the welfare of the child, or that...