Jones v. Jones

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before DENECKE; LENT
• Citation: Jones v. Jones, 557 P.2d 239, 276 Or. 1125 (Or. 1976)
• Decision Date: 23 December 1976
• Parties: Libby J. JONES, Appellant, v. Edwin L. JONES, Personal Representative of the Estate of Joseph Cloyd Jones, Deceased, et al., Respondents.

Page 239

557 P.2d 239

276 Or. 1125

Libby J. JONES, Appellant, v. Edwin L. JONES, Personal Representative of the Estate of Joseph Cloyd Jones, Deceased, et al., Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 4, 1976.

Decided Dec. 23, 1976.

Edward N. Fadeley, Eugene, argued the cause and filed a brief for appellant.

William F. Frye, Eugene, argued the cause and filed a brief for respondents.

Before DENECKE, C.J., and HOLMAN, BRYSON, LENT and BOHANNON, JJ.

LENT, Justice Pro Tem.

This is a suit in equity in which plaintiff seeks to set aside under ORS 16.460(1) a decree dissolving the marriage of plaintiff and Joseph Cloyd Jones on the alleged grounds that plaintiff had been prevented from defending the dissolution proceeding as a result of duress. Plaintiff appeals from a decree denying her relief, dismissing her suit and entering judgment for all defendants for costs and disbursements. Since Joseph had died prior to the commencement of the suit, a favorable result for plaintiff cannot accomplish the physical restoration of the marriage, but it would affect the property rights of plaintiff and the various defendants and is, therefore, not moot.

Plaintiff and Joseph were intermarried first in Kansas in 1943 and later divorced. They lived apart only a short time and were married in Nevada in 1950. They had lived in Oregon for several years before Joseph filed suit in Lane County on February 18, 1972, for dissolution of the marriage and a division of their property. There were no children of the marriage. A default decree was made and entered on May 22, 1972. Joseph died September 28, 1972. The suit at bar was filed against the heirs of Joseph and Joseph's brother, Edwin L. Jones, as personal representative of the estate of Joseph.

Plaintiff's various complaints give us some trouble in ascertaining exactly what it is upon which plaintiff seeks relief, but we shall adopt her own summary of the third amended complaint as found in her abstract of record describing the three causes as follows:

'1) The decree of dissolution was obtained by duress and hence constituted a fraud upon the court;

'2) There existed a common law marriage between Libby and Joseph; and

'3) There were valuable services rendered pursuant to agreement by Libby for Joseph in the amount of the assets of the estate.'

The court overruled the demurrer to the first cause of suit and sustained the demurrers to the second and third causes.

Eventually plaintiff filed a fifty amended complaint containing two causes and tried the case in the lower court on the first cause, which is substantially the same as the first cause in her third amended complaint as above set forth.

We try this suit anew on the record. ORS 19.125(3). The evidence was all by way of oral testimony, and the trial judge, therefore, was in a unique position to weigh the evidence based upon his opportunity to judge at first hand the demeanor of the witnesses and to reach conclusions as to their credibility and the reliability of their testimony. In such cases, although it is our duty to try the case anew on the record, we do, and should, give great weight to the findings of the trial judge.

Plaintiff's first assignment of errof is that the trial judge erred in finding as fact that the plaintiff's 'will was not completely overcome' by the alleged duress.

Upon the trial plaintiff asserted that she was subject both to duress and undue influence, as though the terms were interchangeable. They are probably not, but we need not explore the difference, for in this court plaintiff asserts duress, without mention of undue influence, as the cause of her failure to defend.

Against what definition of 'duress' do we assess plaintiff's evidence to determine whether she has established proof of her claim? From the cases and other authorities we can pick and choose among various statements purporting to define the term. Many of these definitions are obviously worded to deal with the particular factual situation there confronting the court. To avoid that kind of definition we shall simply say that in general any wrongful act or threat thereof which actually compels the victim, against his will, either to act or to forbear from acting constitutes duress.

There was no timely request for special findings under ORS 17.431; however, the trial court issued a memorandum opinion making certain findings in the nature of special findings and a general finding in favor of defendants. The form of decree has elements typical both of a decree upon special findings and upon general findings.

The cause was tried on the oral testimony of plaintiff and witnesses called by plaintiff. Defendant called no witnesses. Plaintiff characterizes the evidence, therefore, as being 'uncontradicted.' With this characterization we cannot agree. Much of the evidence given by witnesses on direct examination was contradicted or weakened upon cross-examination. The direct examination evidence of plaintiff was weakened both on cross-examination and by her version of the facts given upon deposition prior to trial.

Among her witnesses, plaintiff called a psychologist, who examined the plaintiff approximately a year and a half after the dissolution proceedings and about six months after the filing of the case at bar. This witness expressed as her opinion that plaintiff was acting under duress at the time of the dissolution proceedings because she was (a) distinctly fearful of and traumatized by Joseph and, as far as he was concerned, was immobilized psychologically to a point of virtual incompetency; (b) had a fear and continuing concept of her husband as a violent man; and (c) had a strong feeling of dependency upon him. This witness opined that it would not be untypical of plaintiff as a 'stressed hysteric' to behave in a fashion which could be interpreted as willing, when in fact she was responding to strong emotions such as fear, terror or distress.

It is obvious that the trial judge in making the findings hereinafter set out rejected the expert's opinion in whole or in great part. Perhaps he had in mind the rule set forth by this court concerning such evidence in Wallace v. American Life Ins. Co., 111 Or. 510, 225 P. 192, 227 P. 465 (1924); Baber v. Caples, 71 Or. 212, 138 P. 472, 1916C.Ann.Cas.1025 (1914); and Wendl v. Fuerst, 68 Or. 283, 136 P. 1 (1913). In those and other cases we have held that the testimony of experts is to be received and weighed with caution. In Baber we quoted with approval from I Taylor on Evidence, § 58 (8th ed. 19--):

"Perhaps the testimony which least deserves credit with a jury is that of Skilled witnesses. These gentlemen are usually required to speak, not to facts, but to Opinions; and, when this is the case, it is often quite surprising to see with what facility and to what an extent their views can be made to correspond with the wishes or the interests of the parties who call them. They do not, indeed, willfully misrepresent what they think; but their judgments become so warped by regarding the subject in one point of view that, even when conscientiously disposed, they are incapable of expressing a candid opinion." 71 Or. at 221, 138 P. at 475.

We have held that the rule of these cases should not be communicated to juries by instructions embodying the rule, not because the rule is erroneous, but because it invades the province of the jury as judges of the credibility of the witnesses. See Kennedy v. Industrial Acc. Com., 218 Or. 432, 345 P.2d 801, 86 A.L.R.2d 1032 (1959); and Wilson v. State Ind. Acc. Comm., 189 Or. 114, 219 P.2d 138 (1950). That situation is not involved in a trial without jury. Here, the trial judge had the opportunity to weigh the opinion evidence of the expert against that of plaintiff's other witnesses, who had directly observed both plaintiff and Joseph during the period in question.

We have alluded to the discrepancies in plaintiff's own testimony. At times she urged that she was afraid of Joseph because of his manifestations of violence and threats, both to her and to her personal property, and was afraid to oppose his expressed desire for dissolution of the marriage. At other times she testified that she did not oppose him and defend the original suit because of her love for him and interest in his welfare. At one point she even testified on cross-examination that everything she did was done voluntarily. There are many other examples of conduct of plaintiff, from some of which an inference of the presence of duress might be drawn and...