In re Ellenburg

• Decision Date: 24 December 1929
• Citation: 283 P. 27,131 Or. 440
• Parties: IN RE ELLENBURG. v. WOODSON ET AL. ELLENBURG
• Court: Oregon Supreme Court

283 P. 27

131 Or. 440

IN RE ELLENBURG.

ELLENBURG v. WOODSON ET AL.

Supreme Court of Oregon

December 24, 1929

In Banc.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Application by Charlie Ellenburg for modification of an order awarding the care and custody of his minor son, Larch Adair Ellenburg to his divorced wife, opposed by Edith Woodson and husband. From an order and decree denying the application and awarding the child's custody to opponents, applicant appeals. Reversed, and custody awarded to applicant.

Carl E. Wimberly, of Roseburg (M. L. Hallmark, of Waldport, on the brief), for appellant.

L. G English, of Toledo (English & Krause, of Toledo, and B. L Eddy, of Roseburg, on the brief), for respondents and minor.

BEAN J.

On December 10, 1924, the circuit court for Douglas county passed a decree granting Audrey F. Ellenburg a divorce from the appellant, Charlie Ellenburg, and awarding to Audrey F Ellenburg the care and custody of Larch Adair Ellenburg, the minor son of the parties, who was, at that time, two years of age. Thereafter, Audrey F. Ellenburg with Larch Adair Ellenburg, made her home with Edith Woodson, her sister, in Cottage Grove, Ore., and later resided with Mrs. Woodson in Harrisburg, Ore., and still later in Toledo, Ore., where on the 1st day of January, 1929, Mrs. Ellenburg died.

On the 14th day of January, 1929, appellant filed in the circuit court for Douglas county an application for a modification of the order awarding the custody of the child, so as to grant to him the care and custody of his son, Larch Adair Ellenburg. This application, together with a citation, was served upon Edith Woodson, and she appeared and answered, admitting all of said application, except the allegation that the appellant is a fit and proper person to have the care, custody, and control of said child. Her amended answer also alleged that the appellant has no love for the child; that his home is not modern; that he is financially unable to support a larger family than he now has, and further alleged that Audrey F. Ellenburg, before her death, requested that Edith Woodson and F. M. Woodson take Larch Adair Ellenburg and raise him in the event she died. Mrs. Woodson alleged that she is ready, able, and willing to comply with that request, and in conclusion prayed that she be given the care, custody, and control of said child.

A reply having been filed, a trial was had, at the conclusion of which the court made an order and decree denying appellant's application and awarding the custody of Larch Adair Ellenburg to Edith Woodson and her husband F. M. Woodson. This appeal is from that order and decree.

Section 9765, Or. L., provides that, in the absence of misconduct, the rights of the parents to the custody of their minor children are equal. In the case of Barnes v. Long, 54 Or. 548, 104 P. 296, 297, 25 L. R. A. (N. S.) 172, 21 Ann. Cas. 465, the custody of the child was given to the mother by a divorce decree. Upon her death the father instituted habeas corpus proceedings to recover the child from the maternal grandmother In determining the relative rights of the parties in this court, Mr. Justice Eakin said: "In the decree of divorce, the custody of the child was given to the wife, and properly so, notwithstanding she was the party at fault, such fault not reflecting upon her character, and the child being of tender age. But the law recognizes the father, the mother being dead, as the rightful custodian of his child, as against the claim of all persons. Of course, the court in the interest of the child may take it from the parents and make other provision for it, but there must be some good cause for doing so. No doubt the defendant would give the child a good home and the best of care, and is very much attached to it, but as against the father she has no legal claim upon it. Swarens v. Swarens, 78 Kan. 682, 97 P. 968. If the father were unworthy or incapable of caring for it properly, then it would be the duty of the court to place it elsewhere, but no plea of that character is made here. The divorce suit has not relieved petitioner of his parental obligation to his son, and he has done no act that forfeits his right to its custody."

In Bryant v. Dukehart, 106 Or. 359, 210 P. 454, the custody of the minor child was awarded to the mother in the divorce proceedings, and upon her death habeas corpus proceedings were instituted by the father to obtain the custody of the child from Sarah Dukehart, who was appointed testamentary guardian by the mother. The opinion of this court on the appeal was written by Mr. Justice Rand. He says as shown at page 369 of 106 Or., 210 P. 458: "The mother of the child now being dead, the decree in the divorce suit cannot in any way affect plaintiff's right to have the custody of the child. It merely awarded the custody to the mother, and imposed upon her a personal trust revocable by the court, rendering the decree upon proper showing. This trust has been terminated by her death. Taylor v. Jeter, 33 Ga. 195, 81 Am. Dec. 202. As a general rule, upon the death of the parent to whom is awarded the custody of a minor child by a decree divorcing the parents, the other parent becomes entitled to its custody. This is said to be almost a universal rule. * * * As the right of Mrs. Bryant to the custody and control of the child, under the powers conferred upon her by the decree, terminated upon her death, the plaintiff, as the father of the child, is vested with the paramount right to its custody, unless * * * by his own acts and misconduct the plaintiff has forfeited his parental rights. * * * And where the right of the father to the custody of his child--'is resisted, upon the ground of his unfitness for the trust or other cause, a proper regard to the sanctity of the parental relation will require that the objection be sustained by clear and satisfactory proofs. * * * The rights of the father, on the one hand, and the permanent interest and welfare of the...