Kreutzer v. Kreutzer

• Jurisdiction: Oregon
• Parties: Lowell J. KREUTZER, Respondent, v. Betty J. KREUTZER, Appellant.
• Citation: 226 Or. 158,359 P.2d 536
• Court: Oregon Supreme Court
• Decision Date: 21 February 1961

Page 536

359 P.2d 536

226 Or. 158

Lowell J. KREUTZER, Respondent, v. Betty J. KREUTZER, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 12, 1961.

Decided Feb. 21, 1961.

Harry A. Slack, Coquille, argued the cause for appellant. On the brief were Slack & Slack, Coquille.

J. B. Bedingfield, Coos Bay, argued the cause for respondent. On the brief were Bedingfield, Grant & Bedingfield, Coos Bay.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

LUSK, Justice.

This is a proceeding for modification of a decree of divorce in which there was an award of custody of the minor children of the parties.

On May 28, 1958, a default decree of divorce was entered by the circuit court of Coos County in favor of the plaintiff, Lowell J. Kreutzer and against the defendant, Betty J. Kreutzer (now Betty J. Moser). Custody of the two minor children, Susan M. and Edward, who were at the time of the modification hearing respectively 11 and 10 years of age, was awarded to the plaintiff with rights of visitation reserved to the defendant. Both parties remarried after the divorce. Claiming changed conditions, the defendant on December 15, 1959 filed a motion supported by affidavit to modify the decree by granting her the custody of the children. On January 11, 1960, the court held a hearing at the conclusion of which the following occurred:

'The Court: Do you have any other witnesses?

'Mr. Bedingfield (Attorney for plaintiff): I have a couple more, if the Court wishes to hear them.

'The Court: Do you have any further testimony, Mr. Slack?

'Mr. Slack (Attorney for defendant): Prior to the time of trial this morning, Mr. Bedingfield and I stipulated that the Court might talk to these children in the privacy of your office.

'The Court: Do you have any other testimony?

'Mr. Slack: No.

'The Court: The Court doesn't desire to drag the children into these proceedings at all, I don't see any reason for it, I don't think the children should be put to that test, I am not going to call them in and ask them what they think of one parent or the other, or anything of the kind.

'Mr. Slack: I would like to put the children on the stand, then.

'The Court: That request will be denied, and you can appeal to the Supreme Court if you want to. You won't be allowed to, I will not allow children of that age to be called to testify in a matter like this--I don't think you need put on any more testimony, Mr. Bedingfield--I am satisfied in this case that there hasn't been sufficient evidence produced here to warrant the change of custody of these children.'

An order denying the motion was thereupon entered and defendant has appealed, assigning as error, inter alia, the court's refusal to permit the children to testify.

So far as appears, the children were competent witnesses. Neither was under ten years of age, ORS 44.030, nor in any other respect shown or claimed to be incompetent. See ORS 44.020, 44.030. ¹ Nor is there any claim or basis for a claim that the court acted pursuant to ORS 45.530 which authorizes the court to 'stop the production of further evidence, upon any particular point, when the evidence upon it is already so full as to preclude reasonable doubt.'

Consequently, the right of the defendant to call the children to the stand and to elicit testimony from them material to the issues was precisely the same as it would have been in the case of any other competent witness. This is, of course, a fundamental right. Lakson v. Lakson, 124 Or. 219, 263 P. 891. In divorce cases, it seems to be uniformly held that the court has no authority to exclude the testimony of children of the parties of tender years if they are otherwise competent witnesses. 17 Am.Jur. 567, § 455, annotation 2 A.L.R.2d 1330. There is no reason for a different rule in a proceeding for modification of a provision in a divorce decree granting the custody of children, for the parties to such a controversy have the same right to present evidence in open court as in any other case. Rea v. Rea, 195 Or. 252, 277, 245 P.2d 884, 35 A.L.R.2d 612.

It is argued that, in the absence of an offer of proof, the defendant is in no position to urge the error, but in the circumstances of this case an offer of proof, or more properly, an offer to take the testimony under the equity rule, would have been unavailing; for the court's ruling was not based upon an objection to a question, but upon the court's expressed view that the children must not testify at all, because the court would 'not allow children of that age to be called to testify in matter like this.' In the case of Lakson v. Lakson, supra, where the judge interrupted the hearing during the taking of rebuttal testimony on the part of the plaintiff and announced that he had made up his mind and would refuse to hear further testimony, the point was made in this court that error could not be predicated on the court's action unless the evidence which the witness would have...