Laurance v. Laurance
| Decision Date | 17 June 1953 |
| Citation | 198 Or. 630,258 P.2d 784 |
| Parties | LAURANCE v. LAURANCE. |
| Court | Oregon Supreme Court |
O. H. Bengtson, of Medford, argued the cause and filed a brief for appellant.
Ray B. Compton, of Roseburg, argued the cause and filed a brief for respondent.
Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, TOOZE and PERRY, JJ.
This is an appeal by the defendant (wife and mother) from the part of a decree of divorce entered by the circuit court which awarded to the plaintiff (husband and father) the general custody of two children of which the parties are the parents. The children, boys, are eight and ten years of age. Although the defendant filed an answer to the complaint, neither she nor any witness for her testified and the case was submitted upon the testimony given by the plaintiff and a witness called by him. The transcript of testimony covers only seven pages. The defendant-appellant does not challenge the part of the decree which severed the bonds of matrimony.
The complaint which sought the divorce upon charges of cruel and inhuman treatment contained this averment:
'Plaintiff is a fit and proper person to have the care and custody of the minor children awarded to him; * * * the defendant is not a proper person to have the care and custody of said children awarded to her.'
The answer said:
'Admits that plaintiff is a fit and proper person to have the care and custody of said children, but further alleges that defendant is likewise a fit and proper person to have the care and custody of said children awarded to her; * * *.'
The reply declared:
'Admits that as in said property settlement it is to the best interests of said minor children that their care and custody be awarded to the defendant.'
The property settlement mentioned in the language just quoted was evidenced by a writing signed May 31, 1951. Referring to the parties and to the children, it stated:
'* * * desiring to provide as fully as they legally may for the future custody, maintenance, nurture and care of said children for the best interests particularly of said children, and each of the parties hereto for the purpose of this particular provision of this agreement waiving all animosity against the other and considering only the welfare of their respective children, it is agreed between them that each of the parties would be a suitable and proper person to have the care and custody of said minor children or either of them awarded to him or her, but further considering the tender age of said children, it is agreed that subject to the approval of the court having jurisdiction of any divorce suit between them that the care and custody of said minor children shall be awarded to the party of the second part * * *.'
The 'party of the second part' was the defendant, that is, the mother. After the parties had signed the property settlement agreement, the plaintiff filed a supplemental complaint in which he charged that he was induced to sign the instrument by false representations--promissory in character--made by the defendant. His pleading then continued:
'* * * by reason of the facts aforesaid and by reason of the society and company into which defendant takes the minor children of the parties hereto and by reason of her conduct as hereinbefore alleged, defendant is not a fit and proper person to have the care and custody of said children or either of them awarded to her.'
The answer of the defendant to the supplemental complaint denied its averments.
January 18, 1952, being one month after the supplemental complaint had been filed, the partes subscribed to a second property settlement agreement which contained this provision:
'Whereas at this time the parties are again agreed that it is for the best interests of their minor children as mentioned in the complaint and amended and supplemental complaint in said cause that their care and custody be awarded to the defendant, subject to the right of Kenneth C. Laurance to visit with them and have them visit with him at reasonable and seasonable times, * * * now, therefore, it is understood and agreed by and between the parties that * * * the property settlement entered into on May 31, 1951, * * * shall be and remain in full force and effect * * *.'
The findings of fact state:
'The property settlement agreements of May 31, 1951, and January 18, 1952, except as to custody of the minor children of the parties and the payment of support money for such children, which said agreements were received in evidence in this suit and are marked plaintiff's Exhibit 'A' and Plaintiff's Exhibit 'B' be and the same are hereby approved.'
The presentation of evidence, as we have indicated, was brief. It showed that until discord disrupted their relationship the parties and their children made their home in Roseburg. By answering 'yes' or 'yes, sir' to questions put to him by his counsel, the plaintiff indicated that his wife had associated frequently with a male companion by the name of Orr. In the same way he adopted a statement of his counsel that he saw his wife in Myrtle Creek drunk in the company of Orr. According to the plaintiff, his wife and Orr made 'approximately a dozen trips' together to Portland and Medford. He testified that his wife had moved into a house in Medford which Orr owns, and answered 'yes' to an inquiry which asked whether Orr also lives in the house. The size, type and number of rooms in the structure were not disclosed. No intimation, or at least no express one, was made that his wife and Orr had had sexual relationships. The fact that, according to his own voluntary admissions, he twice forgave his wife for her conduct with Orr possibly warrants a belief that the liaison of the two never reached the ultimate amorous degree. He identified and, through his counsel, introduced in evidence the two documents which comprised the property settlement agreements which we have mentioned. He said nothing whatever adverse to either paper but, to the contrary, by presenting both to the court, manifestly asked it to be guided by them in reaching its decision. Concerning the children and their custody, he gave no testimony other than the following:
Apart from the foregoing testimony, the stipulations in the property settlement agreement, and the averments in the pleadings, all of which we have fully recounted, there is nothing in the record pertaining to the children.
The transcript of evidence, apart from an utterance which we will presently mention, contains nothing indicating whether or not the plaintiff has a home into which he could take the children in the event that their custody was awarded to him, nor does it indicate whether or not there is available to him someone capable of attending the children while he may be away from home at work. The utterance to which we just referred was made by plaintiff's counsel at the close of the testimony while the trial judge and the attorneys were engaged in colloquy. At that point plaintiff's counsel declared:
'Mr. Laurance, right at the present time, at least, does not have a suitable place to take care of the...
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