Jenkins v. Jenkins

• Citation: 184 Or. 525,198 P.2d 985
• Parties: JENKINS <I>v.</I> JENKINS
• Decision Date: 03 November 1948
• Court: Oregon Supreme Court

184 Or. 525

198 P.2d 985

JENKINS

v. JENKINS

Supreme Court of Oregon.

Argued June 22, 1948.

Reversed November 3, 1948.

Petition for rehearing denied November 30, 1948.

Divorce — Modify divorce decree — Burden of proving fraud

1. On motion by divorced wife to modify divorce decree, in order to secure custody of daughter, wife had burden of proving that she was induced by fraud, practiced by husband, to refrain from originally applying for custody of the daughter in the divorce suit. O.C.L.A., § 1-1007.

Divorce — Modify divorce decree — Custody

2. On motion by divorced wife to modify divorce decree, in order to secure custody of daughter, evidence was insufficient to establish wife's charge that she was induced by fraud, practiced by husband, to refrain from originally applying for custody of daughter in divorce suit. O.C.L.A., § 1-1007.

Divorce — Custody — Nine year old daughter

3. Ordinarily, custody of a nine-year-old daughter of divorced parents should be awarded to the mother, if the mother is of good moral character and has shown interest in the daughter.

Divorce — Custody — Best interests of child

4. The paramount duty of a court in determining custody of a child of divorced parents is to award custody of child to that parent who will best serve the interests of the child.

Divorce — Change in custody — Burden of proving — Best interests

5. On motion by divorced wife to modify divorce decree in order to secure custody of nine-year-old daughter, wife had burden of proving that a change in custody would be for daughter's best interest.

Divorce — Modification — Custody

6. On motion by divorced wife to modify divorce decree in order to secure custody of nine-year-old daughter, evidence was insufficient to establish that change of custody would be for daughter's best interest.

                  See 27 C.J.S., Divorce, § 317
                  17 Am. Jur. 517
                

Appeal from Circuit Court, Douglas County.

CARL E. WIMBERLY, Judge.

Thomas C. Hartfiel, of Roseburg, argued the cause and filed a brief for appellant.

George Luoma, of Roseburg, argued the cause and filed a brief for respondent.

Before ROSSMAN, Chief Justice, and LUSK, KELLY, BAILEY and HAY, Justices.

Suit for divorce by Elmer Thomas Jenkins against Velma Ruth Jenkins, now Velma Ruth Bratton, wherein the plaintiff was awarded a decree of divorce and custody of a daughter of the parties. From an order modifying the divorce decree with respect to child's custody, the plaintiff appeals.

REVERSED.

ROSSMAN, C.J.

This is an appeal by Elmer Thomas Jenkins, father of Eldine Jenkins, a minor, from an order of the circuit court entered September 20, 1947, which modified the provisions of a decree of divorce concerning the custody of Eldine. The defendant-respondent is the mother of the child. The latter was born July 3, 1938. The decree which was entered March 29, 1943, awarded Eldine's custody to the father and granted the mother the right to visit at reasonable times. The attacked order awarded the custody to the mother but granted the father the right of visitation. The decree of divorce was entered upon the defendant's default, and was based upon a complaint which averred cruel and inhuman treatment.

The motion to modify presented the following propositions: (1) the defendant has remarried; (2) the plaintiff has remarried; (3) the defendant is the proper person to have the custody of Eldine and now possesses a home; (4) "the default divorce decree obtained by the plaintiff in the above-entitled suit was obtained through fraud and deceit practiced by the plaintiff upon the defendant"; and (5) in August, 1942, the defendant left the plaintiff "for her own protection and good interests as well as that of their minor child" and prior to her departure the parties had "mutually agreed * * * that as soon as defendant became settled in California and could provide a home for herself and her minor child that defendant would then have the care and custody of their minor child."

We shall first consider the charge that the decree of divorce resulted from fraud practiced by the plaintiff upon the defendant. Notwithstanding the fact that the motion upon which the attacked order is based, charges that the divorce decree "was obtained through fraud and deceit," there appears to be no claim that the charges of cruelty which were averred in the complaint and which were found by the findings of fact to be true, were, in fact, false. The findings of fact, when epitomized, found that the defendant was guilty of cruelty in the following particulars: violent temper; nagging and fault-finding disposition; "every year since the marriage of plaintiff and defendant, without any cause for so doing, the defendant has left the plaintiff and their home and has remained away for from one to six months"; unwarranted "dissatisfaction with their home and with plaintiff's occupation"; an unwillingness to make a permanent home with plaintiff; an announcement by the defendant in August, 1942, that "she had lost all of her love and affection for plaintiff; that she was leaving him and was not coming back"; and in August, 1942, "defendant packed all her belongings and went to California, leaving the plaintiff and his daughter in their home at Sutherlin, Oregon." The charge of deceit apparently is not that those charges were untrue, but only that the defendant was induced by fraud, practiced by the plaintiff, to refrain from applying for the custody of the child.

The parents, prior to the divorce, made their home in or near Sutherlin. One of the circumstances which made for domestic discord was the fact that the defendant annually left the home and stayed away for extended periods. Shortly prior to the institution of the suit for divorce the defendant was engaged in packing her belongings preparatory to another departure. When the plaintiff noticed what she was doing he told her that if she went he would seek a divorce. The defendant adhered to her plan, departed from her home, left Eldine behind and went to reside with a sister in Los Angeles. Two months later, that is, October 23, 1942, the complaint in the divorce suit was filed and in the following month the defendant was served with the complaint and summons. The prayer asked that the custody of Eldine be awarded to the plaintiff. The defendant at once returned to Sutherlin. March 29, 1943, the decree of divorce was entered.

Upon the hearing concerning the custody of Eldine which occurred after the defendant had filed the motion now under consideration for a modification of the decree, the defendant swore that before she left home in August, 1942, she effected an agreement with the plaintiff that "I should leave her there until I was settled and had somebody to help me take care of her. * * * I was to leave her there and come back for her as soon as I got settled and had a home and job." She also testified that when she returned home after having been served she spoke to the plaintiff about the suit and was told that she need not employ an attorney that he did not intend to continue with the suit and that she could have the custody of their daughter if she wanted it. She added that the plaintiff expressed a preference for divided custody. Eldine was four years of age when the suit for divorce was filed.

The plaintiff denied that he made any of the statements and promises attributed to him by the defendant. He swore that when the defendant returned to Sutherlin her principal concern was about the divorce and that she made little mention of Eldine and of her custody. He testified that the defendant urged that the divorce be granted to her, but that he replied he intended to get the divorce for himself as soon as he could procure the money necessary to discharge expenses. It will be recalled that the complaint was filed October 23, 1942, and that no decree was entered until March 29, 1943. Thus an interval of five months passed before the decree was rendered. The plaintiff accounted for the delay by swearing that he lacked money with which to prosecute the suit, and his attorney calls attention to the intervals that elapse between terms of court in Douglas County. The defendant conceded that she was in Sutherlin from the time she returned in November to and including March 29, 1943, when the decree was entered. In fact, referring to the entry of the decree, she testified: "I stayed around there for a month or so and worked." It was not until the "month or so" had passed that she left Sutherlin. Thus approximately half a year intervened between the defendant's return to Sutherlin and her departure after the entry of the decree. Before the defendant left Sutherlin for her return to Los Angeles she did not apply to the court for a modification of the decree, nor did she request the plaintiff to permit her to take Eldine with her. It is clear that the defendant knew before she left Sutherlin that custody of Eldine had been awarded to the plaintiff. The defendant's own words were: "He said I had no chance, I lost it when I did not contest the divorce." The statement by the plaintiff to which the quoted words refer was made to the defendant before she left Sutherlin.

About the time that Eldine was nearing the age for entry into grammar school, the plaintiff wrote the defendant a letter in which he asked her to return to Sutherlin and take care of Eldine. The letter agreed to pay the defendant for her services. As a result of the offer, the defendant came to Sutherlin. She testified: "When I got here he asked me to stay and make a new home for her." The defendant agreed to do so. She took care of Eldine for a year. The plaintiff paid her for her work. In that period the defendant did not apply to the court for a vacation of the decree of divorce nor for a modification of the part which granted the custody of Eldine to the plaintiff.

August 11, 1945, the defendant was married to Clarence H. Bratton. January 25, 1947, the motion now under consideration...