Kellogg v. Kellogg

• Decision Date: 29 December 1949
• Parties: KELLOGG v. KELLOGG.
• Court: Oregon Supreme Court

213 P.2d 172

187 Or. 617

KELLOGG v. KELLOGG.

Supreme Court of Oregon.

December 29, 1949

D. L. Carter, of Weiser, Idaho, argued the cause for appellant, on the brief was Herbert W. Carter, of Salem.

R. D. H Swindley, of La Grande, argued the cause for respondent, on the brief were Dixon & Burleigh, of La Grande.

Before LUSK, C. J and BRAND, BAILEY, HAY and PAGE, JJ.

HAY Justice.

The parties to this suit intermarried April 10, 1941. On June 7, 1946, the Circuit Court for Union County, at the suit of plaintiff husband, entered a default decree dissolving the marriage and awarding plaintiff custody of Sharon Marie Kellogg, the only child of the parties, then aged four years, and giving defendant the right to visit said child 'on reasonable occasions'. On May 13, 1948, plaintiff moved the court to modify the decree so as to give him exclusive custody. The motion was heard upon affidavits and testimony adduced by both parties. On September 9, 1948, the trial court modified the decree by awarding sole and exclusive custody to plaintiff, and denying defendant all rights of visitation. Defendant appealed.

It appears from the evidence that, since the divorce, both parties have remarried. Plaintiff is a pre-medical student at Eastern Oregon College his present wife is employed in a bank at La Grande. They reside at Cove, about fifteen miles from La Grande, with plaintiff's parents, Dr. and Mrs. Edward Kellogg. In April, 1946, plaintiff took the child from the defendant at Weiser, Idaho, where the defendant and child were living, in a single hotel room, with Oscar Swanson, whom defendant has since married. Since April, 1946, the child has been continuously in plaintiff's custody. During the period from April, 1946, to July 19, 1948, the date of the hearing upon the present motion, defendant visited the child only five times. On several occasions, she passed through La Grande on her way to visit her present husband's parents and might have stopped over to see the child if she had wished to do so.

There was credible evidence that the child's mind is obsessed by fear, which apparently springs from her experiences with her mother and Swanson at Weiser. She is emotionally quite disturbed by her mother's visits, and appears to be especially afraid that 'Oscar' will come and get her. There was testimony on the contrary, tending to indicate that the child was well cared for and happy while with her mother, and had no fear of Oscar. The trial judge, in a memorandum opinion, said, in part: '* * * There is no question but what the mother's visitations have a tendency to upset the child as well as everyone else concerned. The question of the restraint and nervousness and general upsetting is a question which is no doubt debatable. It would be difficult to say that it was entirely the fault of the plaintiff, and by the same token it would be difficult to say that it was entirely the fault of the defendant, but one thing is unquestionably true and that is that in the tug of war between these divorced parents for the affections of the child the child does become emotionally upset when the mother comes around.'

A detailed statement of the evidence is unnecessary. It is sufficient to say that the defendant herself seems to be of a highly emotional temperament, and that her visits have been emotionally very disturbing to the child. On one such visit defendant was accompanied by her husband Swanson, whose presence was greatly resented by plaintiff. This resulted in an angry controversy in the presence of the child, which, of course, tended to aggravate her nervousness.

Under our statute, section 9-914(1), O.C.L.A., as amended by chapter 228, Or. L., 1947, the court, in awarding custody of children in divorce cases, must, unless it is otherwise manifestly improper, give preference to the party not at fault. Nevertheless, this court has held in numerous cases that children of tender years, particularly girl children, should be awarded to the custody of their mothers, even when the mother is the losing party, unless she is morally unfit. Barnes v. Long, 54 Or. 548, 104 P. 296, 25 L.R.A., N.S., 172, 21 Ann.Cas., 465; Griffin v. Griffin, 95 Or. 78, 187 P. 598; Wells v. Wells-Crawford, 120 Or. 557, 251 P. 263, 907; Borigo v. Borigo, 142 Or. 46, 18 P.2d 810; Sachs v. Sachs, 145 Or. 23, 25 P.2d 159, 26 P.2d 780; Baier v. Baier, 172 Or. 83, 139 P.2d 562; Leverich v. Leverich, 175 Or. 174, 152 P.2d 303. The divorce decree in the present case, however, gave custody to plaintiff. Before any change in custody is made, it must be shown that, since the entry of the decree, there has been a change in conditions affecting the welfare of the child, and that the proposed change in custody would be for the child's best interests. Borigo v. Borigo, supra; Leverich v. Leverich, supra; Lingel v. Maudlin, Or., 212 P.2d 751. The burden of making such showing is upon the party seeking the change. Merges v. Merges, 94 Or. 246, 186 P. 36. Defendant failed to sustain that burden. She argues before this court that plaintiff, moved by animosity toward her, is influencing the child to hate and disrespect her, and that this fact is a sufficient circumstance in itself to warrant to change of custody. We agree that, if this were true, it might be so. Johnson v. Johnson, 102 Or. 407, 202 P. 722. However, while the parties undoubtedly are very bitter toward each other, we do not think that the evidence establishes that plaintiff is influencing the child to hate or disrespect its mother.

Plaintiff and his present wife are rearing the child in a home of culture and refinement, under conditions conducive to her present and future well-being. The trial judge's view of the evidence impelled him to hold that the child's best interests required that her...