Henry v. Henry

• Decision Date: 22 June 1937
• Citation: 156 Or. 679,69 P.2d 280
• Parties: HENRY v. HENRY.
• Court: Oregon Supreme Court

69 P.2d 280

156 Or. 679

HENRY v. HENRY.

Supreme Court of Oregon

June 22, 1937

Department No. 1.

Appeal from Circuit Court, Klamath County; Edward B. Ashurst, Judge.

Divorce action by Beulah Henry against Jerome Henry. From the decree Beulah Henry appeals.

Affirmed as corrected.

W. C. Van Emon, of Klamath Falls, for appellant.

J. H Napier, of Klamath Falls, for respondent.

BEAN Chief Justice.

Plaintiff Beulah Henry, and defendant, Jerome Henry, were married in Mt. Shasta City, Cal., July 23, 1927. Two children were born A boy, Jack Henry, age 7, born July 12, 1929, and a girl, Donna Henry, age 2, born June 28, 1934.

On October 14, 1936, the circuit court rendered a decree of divorce in favor of plaintiff, dissolving the bonds of matrimony existing between plaintiff and defendant. The court further ordered and decreed that plaintiff, Beulah Henry, have the custody and control of Donna Henry during her minority, subject to the right of defendant, Jerome Henry, to have said child with him for a visit on the second Sunday of each month; that the defendant, Jerome Henry, be given exclusive care, custody, and control of Jack Henry during his minority, with the right of plaintiff, Beulah Henry, to have said minor child, Jack Henry, with her for a visit during the last Sunday of each month until said Jack Henry shall attain his majority; that Beulah Henry, plaintiff, recover from Jerome Henry, defendant, the sum of $20 per month during the months of November and December of 1936, and January, 1937, for the support, care, and maintenance of said Donna Henry; that plaintiff recover of and from defendant the sum of $25 per month for the care, support, and maintenance of said Donna Henry from the 1st day of March, 1937, to the last day of January, 1947. The provision for payment of $25 per month for the support and maintenance of Donna Henry from the 1st day of March, 1937, to the last day of January, 1947, is evidently a clerical error. The month of February, 1937, is omitted, so this provision should be corrected to read as follows: "That plaintiff recover of and from defendant the sum of $25 per month for the care, support and maintenance of said Donna Henry from the first day of February, 1937, to the last day of January, 1947." The court further decreed that plaintiff recover of and from defendant the sum of $30 per month for the care, support, and maintenance of Donna Henry from January 1, 1947, until said Donna Henry shall have attained her majority, and that Jerome Henry pay to the clerk of the court the sum of $35 to defray the expenses of the court reporter for the testimony in the suit. The court, by a former order, under date of May 5, 1936, required defendant to pay the sum of $75 per month for maintenance and support pendente lite, and for suit money in the sum of $125 for attorney's fees, and $25 for court costs under date of May 25, 1936.

Plaintiff appeals from that portion of the decree in favor of defendant and against the plaintiff wherein the court decreed the sole custody and control of the minor child Jack Henry to the defendant, and that part of said decree wherein the court made no allowance or provision for alimony or support money for the plaintiff, and wherein the court made an alleged inadequate provision of $20 per month for the support of the minor child Donna Henry for November and December, 1936, and January, 1937, and omitted entirely from said decree for the month of February, 1937, and from the provision of $25 per month from March 1, 1937, to January 1, 1947, and $30 per month from January 1, 1947, until said Donna Henry shall attain her majority, and plaintiff further appeals from that part of the decree wherein the court failed to allow plaintiff her entire court costs, witness fees, and attorney's fees.

No property rights are involved in this suit. Plaintiff assigns error of the court "in decreeing that the party in fault, the defendant-respondent, should have custody and control of one of the minor children, Jack Henry, age 7." Section 6-914, Oregon Code 1930, gives the court power to decree as follows:

"Whenever a marriage shall be declared void or dissolved, the court shall have power to further decree as follows:

"1. For the future care and custody of the minor children of the marriage, as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault;

"2. For the recovery from the party in fault, and not allowed the care and custody of such children, such an amount of money, in gross or in instalments, as may be just and proper for such party to contribute toward the nurture and education thereof;

"3. For the recovery from the party in fault such an amount of money, in gross or in instalments, as may be just and proper for such party to contribute to the maintenance of the other."

The court found plaintiff was a fit and proper person to have the care and custody of Donna Henry, the minor girl, giving defendant the privilege to visit her. The court also found Jerome Henry, the defendant, was a fit and...