Kloster v. Kloster

• Decision Date: 10 January 1950
• Citation: 187 Or. 683,213 P.2d 448
• Parties: KLOSTER v. KLOSTER.
• Court: Oregon Supreme Court

213 P.2d 448

187 Or. 683

KLOSTER v. KLOSTER.

Supreme Court of Oregon.

January 10, 1950

Wendell W Wyatt, of Astoria, argued the cause for appellant. On the brief were Norblad, Whatt & Norblad, of Astoria.

M. E Reynolds, of Astoria, argued the cause and filed a brief for respondent.

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

PAGE Justice.

This is a suit for divorce by Helmer M. Kloster, plaintiff, against Dorothy E Kloster, defendant, alleging cruel and inhuman treatment and setting up certain property claims and asking that plaintiff be awarded the care, custody, control and education of two minor children, Kenneth Melvin born in 1937, and Kay Louise born in 1941, and alleging certain acts of cruelty on the part of the defendant.

To this complaint, the defendant filed an answer and cross-complaint in which she asked for a divorce from her husband on the ground of cruel and inhuman treatment, setting forth certain property claims and asking that she be awarded the care, custody and control and education of the minor children.

The case was tried before the circuit court in Clatsop County, Oregon, on the first day of November, 1948. A decree was entered in favor of the plaintiff awarding him certain property rights and the care, custody, control and education of the two minor children. From this decree, the defendant has appealed setting forth three assignments of error as follows:

1. The court erred in failing to grant a decree of divorce to defendant based upon the evidence before the court.

2. The court erred in granting a decree of divorce to plaintiff on the evidence before the court.

3. The court erred in awarding the care, custody, control and education of the minor children to the plaintiff instead of the defendant on the evidence before the court.

On July 22, 1949, after the appeal had been perfected, the attorneys for appellant notified the clerk of this court as follows:

'Dear Sir:

Re Kloster vs. Kloster

'In reference to the above appeal now pending, please be advised that the appellant was married recently and therefore on her behalf we are withdrawing from the consideration of the court Assignments of error No. 1 and No. 2, and will press only assignment of error No. 3.'

This brings this appeal to only one question, and that is: To whom should the court award the care, custody and control and education of the minor children of the parties to this case? Therefore, that is the only matter to be considered at this time.

Section 9-914, O.C.L.A., as amended by Chapter 228, Oregon Laws 1947, provides as follows:

'Whenever a marriage shall be declared void or dissolved, the court shall have power further to decree as follows:

'1. For the future care and custody of the minor children of the marriage, as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not at fault.'

At the present time, defendant has the custody of the children and is living with them in the city of Albany, Oregon, while plaintiff is residing at Astoria, Oregon, where he is employed at a salary of $300 per month.

Notwithstanding the provisions of the statute, Section 9-914, O.C.L.A., as amended, Chap. 228, Oregon Laws 1947, this court is committed to the proposition that children of tender years generally should be awarded to the mother even though she is the losing party, unless she is morally unfit. Baier v. Baier, 172 Or. 83, 129 P.2d 562; Leverich v. Leverich, 175 Or. 174, 152 P.2d 303.

We have carefully followed the tale of marital experiences and indiscretions through many pages of the record and have found nothing which, if published, would assist the profession or redeem tarnished reputations.

The defendant not only fled from her own home but apparently had no compunction about breaking up another family in which there were four small children. This is not the type of a woman who should be charged with the responsibility of rearing two small children. This defendant, by her own admissions, met with a married man in a barn, even though at intervals of not more than ten minutes at a time, and exchanged notes with him at various...