Johnson v. Johnson

• Decision Date: 27 December 1921
• Citation: 202 P. 722,102 Or. 407
• Parties: JOHNSON v. JOHNSON.
• Court: Oregon Supreme Court

202 P. 722

102 Or. 407

JOHNSON v. JOHNSON.

Supreme Court of Oregon

December 27, 1921

Appeal from Circuit Court, Multnomah County; John McCourt, Judge.

Action by George Johnson against Ethel V. Johnson. From a supplementary order modifying a former order in regard to the custody of the minor children of plaintiff and defendant defendant appeals. Affirmed.

This is an appeal from a supplementary order of the circuit court modifying a former order in regard to the custody of the minor children of plaintiff and defendant.,

The history of the case is as follows: In March, 1919, plaintiff obtained a decree of divorce from defendant on the ground of willful desertion, and in said decree the custody of the two minor children of plaintiff and defendant, Violet, then aged seven years, and Geraldine, aged six years, was awarded to defendant, subject to the right of the plaintiff to see and be with the children at certain times designated; the order being as follows:

"That the care and custody of said children is hereby awarded to the defendant, subject, however, to the right of the plaintiff to visit said children on one day of each and every week, excepting Mondays and Thursdays. When such day selected by plaintiff is a school day, he shall see the children and have them with him between the hours of 3 and 5 in the afternoon. When such day is a Saturday or a holiday, he shall see them and have them with him between the hours of 1 and 5 in the afternoon. Plaintiff shall give notice by letter or by telephone to defendant or to some person at the home of defendant, and such notice shall be given one day in advance. That the plaintiff is entitled to this privilege without let or hindrance from the defendant or from any other person, and plaintiff shall have said children with him away from said home. That the said children shall not be taken away from the county of Multnomah, state of Oregon, without serving notice upon plaintiff and an order upon said notice obtained from the court except that said children may during summer school vacation be taken out of Multnomah county upon notifying defendant of their whereabouts, that the plaintiff shall pay for the care and custody and support of each of said minor children the sum of $20 a month on or before the 10th day of each month hereafter until said children shall have arrived at the age of 18 years."

In May 1919, a motion was filed by defendant, asking that the previous order be modified so the plaintiff would not be permitted to take the children from her residence, which was with her mother, Mrs. Annabelle Steele, in the city of Portland. The motion was accompanied by affidavits to the effect that the children were of delicate organization and of frail health, and in such fear of their father that, upon one occasion when he proposed to take them to his home Geraldine, the younger child, had fainted, requiring the services of a physician to restore her. The plaintiff replied by an affidavit stating, in substance, that he had in good faith consented that the care and custody of the children should be awarded to the defendant, subject to the conditions set forth in the original decree. The affidavit continues:

"That both the defendant and her mother, Mrs. Annabelle Steele have deliberately sought, by direction and indirection, to defeat the decree of this court in my seeing the said minor children and having them with me, not only before the decree of the divorce was entered, but since then, both the defendant and her mother Mrs. Steele, have adopted a course of giving one excuse after another against my seeing the children and having the children with me. They have instilled into the minds of the children fear of me, and have wrought upon the children's mind to such an extent that the children are in fear of their father.

"That ever since this suit was filed, I have been unable to be alone with my children. The influence of the mother of defendant, Mrs. Anabelle Steele, both over the defendant Ethel B. Johnson and the children, is so great that she dominates all their course of actions. Mrs. Steele is a person of strong character, and shows her likes and dislikes in such a positive manner as to control her daughter and her grandchildren. Ever since the above-entitled case was instituted, and particularly since the decree of this court was entered, Mrs. Steele has whenever I called on said children, stood guard over said children, and has continuously, while I have been calling on said children, signaled the children in different ways directing their actions toward me. That I know of my own knowledge that said children are influenced against me by Mrs. Steele, and that I cannot inculcate into said children a love for their father while they are dominated by their grandmother, Mrs. Steele. That I sincerely believe that it would be for the best interest of said children to have the children placed in the care and custody of a third...