Lorenz, Application of

• Decision Date: 20 February 1952
• Parties: Application of LORENZ. LORENZ v. ROYER et ux.
• Court: Oregon Supreme Court

Page 142

241 P.2d 142

194 Or. 355

Application of LORENZ LORENZ v. ROYER et ux.

Supreme Court of Oregon.

Argued Jan. 3, 1952.

Decided Feb. 20, 1952.

Kenneth E. Shetterly and Philip Hayter, of Dallas, for appellant.

Lawrence N. Brown, of Salem, and Bruce Spaulding, of Portland, for respondents.

Before BRAND, C. J., and ROSSMAN, LUSK, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is a habeas corpus proceeding to determine the custody of James H. Royer, now eleven years of age, and Thomas W. Royer, now nine years of age, minor sons of Helen A. Lorenz and her former husband, Robert W. Royer. The proceeding was instituted by Helen A. Lorenz, as plaintiff, against Robert W. Royer and Ima Royer, his wife, as defendants. From a decree dismissing the writ and awarding custody of said minor children to defendant Robert W. Royer, plaintiff appeals.

We shall hereafter refer to Robert W. Royer as defendant. The plaintiff and defendant were married at Fort Wayne, Indiana, on August 4, 1940. This was plaintiff's first marriage and defendant's second. In 1941, James H. Royer and, in 1943, Thomas W. Royer, were born as the lawful issue of this marriage. On July 8, 1944, a daughter was born as the lawful issue of said marriage, but her custody is not involved in this litigation.

Defendant is the son of the Reverend Mr. James H. Royer. The Reverend Mr. Royer is a Methodist clergyman, having been such since 1914, and presently is located at Falls City, in Polk county, Oregon. However, most of his ministerial life was spent in the Northern Indiana conference. Before coming to Oregon in 1947, he and his wife lived for a short time at Lansing, Illinois, having moved there from Indiana. Defendant now is approximately 36 years of age.

Plaintiff and defendant separated in October, 1943, at which time defendant went to Elkhart, Indiana, to work, and plaintiff and her children remained in Fort Wayne. During most of their married life, plaintiff and her husband lived with his parents, and at times lived with her parents, in and near Fort Wayne. Plaintiff was compelled to work to support herself and family, sometimes including her husband. When the parties were living with defendant's parents, defendant's mother cared for the children during the day while plaintiff was working.

On September 28, 1944, Helen A. Royer (now Lorenz), as plaintiff, filed suit for divorce against Robert W. Royer, as defendant, in the superior court of the state of Indiana for Allen county. At that time and at all times prior thereto subsequent to their respective births, said minor children were and had been residents of and domiciled in Allen county, Indiana, and were then, and since the separation of plaintiff and defendant in October, 1943, had been, in the exclusive custody of plaintiff in said Allen county, and so remained in her custody until April, 1945, as hereafter mentioned. Defendant was personally served with summons in said suit within the state of Indiana and appeared therein by his attorney, one Judge Hildeman, of Fort Wayne. Custody of said children pendente lite was awarded to plaintiff by the court. On January 19, 1945, defendant was brought before the court in said suit in nonsupport proceedings.

On June 1, 1945, the following decree was entered in said court and suit (omitting formal parts):

'Be it remembered, that on the 1st day of June A. D., 1945 the same being the 53rd Judicial day of the April Term, 1945, of said Court, held at the said Court House, before the Honorable Judge aforesaid, the following court order was made in the above entitled cause by said Court to-wit:

'Comes now the defendant herein and files the answer of no information and denial, which answer is in the following words and figures, to-wit: (H. I.).

'Come now the parties herein, by counsel, and this cause now being at issue, the same is submitted to the Court for trial, and the Court having heard the proofs and evidence and being duly advised in the premises, now finds that the allegations contained in said plaintiff's complaint are true and that the plaintiff should be granted an absolute divorce from the defendant, at costs to said defendant.

'The Court further finds that said plaintiff is a proper and suitable person to have the care, custody and education of the minor children named in the complaint and is entitled to their care and custody until the further order of this Court.

'The Court further finds that said defendant should be given the privilege of visiting minor children at reasonable times and to have the children with him for periods as agreed by and arranged by said parties.

'It is, therefore, ordered, adjudged and decreed by the Court that the bonds of matrimony existing between the plaintiff and the defendant hereby are dissolved, and the said plaintiff, Helen A. Royer, be and she hereby is granted an absolute divorce from the said defendant, Robert W. Royer.

'It is further ordered, adjudged and decreed by the Court that the said plaintiff have the care and custody of minor children, James H., aged 4 years, Thomas W., aged 2 years and Helen K., aged 11 months, until the further order of this Court.

'It is further ordered, adjudged and decreed by the Court that the said defendant pay into the office of the Clerk of this Court the sum of Fifteen ($15.00) dollars per week for the support of said minor children.

'It is further ordered, adjudged and decreed by the Court that the said defendant be and he hereby is given the privilege of visiting minor children at reasonable times and to have children with him for periods as agreed by and arranged for by said parties.

'It is further ordered, adjudged and decreed by the Court that the said defendant pay the costs of this action as herein laid out and expended.'

This decree has not been modified or changed in any respect since its rendition.

During the pendency of the above suit, plaintiff was compelled to continue her employment in order to support herself and the children. She employed others to care for the children in the daytime while she was working. In the spring of 1945, she procured an unfurnished house in need of repairs, to serve as the future home of herself and the children. The persons who had been caring for her children were unable to continue such care, and during the period of time necessary to put the new home in condition for occupancy, it was essential that plaintiff arrange for the temporary care of her children elsewhere. She wrote defendant, suggesting he might take the children to the home of his parents to be cared for until the new home was ready. Defendant's parents then resided at Lansing, Illinois, about 100 miles from Fort Wayne and just a mile over the Indiana-Illinois boundary line. Thereupon, and during the forepart of April, 1945, defendant took the two boys to the home of his parents.

In August or early September, 1945, after the divorce decree had been entered, plaintiff went to the Royer home in Lansing and demanded custody of her children. Defendant had knowledge of the provisions of the divorce decree. He told plaintiff that the Indiana decree had no effect in Illinois and refused her custody. Plaintiff returned to her home, consulted her attorney, and then returned to Lansing to get the children. The children were not then at the Royer home, and defendant's mother refused to inform plaintiff of their whereabouts.

It appears that defendant removed the children from Illinois to Wisconsin, and later to Oregon, arriving in this state February 6, 1946, and taking up residence at Turner, in Marion county. He moved from Turner to West Salem, in Polk county, where he now resides.

Defendant in the meantime married one Virginia Groff of Millersburg, Indiana, and one child was born of this union. In 1948, Virginia returned to Indiana with her child, and in January, 1950, was awarded a decree of divorce from defendant and the custody of her child by an Indiana court. In August, 1950, defendant married Ima Scheid, his present wife. For two years prior to his marriage to Ima, the children were cared for by defendant's parents at Falls City.

In passing, we note the fact that for many years prior to 1948, defendant was an alcoholic. Perhaps all his matrimonial difficulties may be traced to this disease from which he suffered. In 1948, he joined Alcoholics Anonymous at Salem and since that time, according to his testimony, has not used alcoholic liquor. He is to be commended for effecting his own cure, and we do not feel it amiss to express the hope that the cure is permanent. There is no question that defendant's present wife, a registered nurse, is a splendid, refined woman, and no doubt will be of much encouragement and help to him.

After disappearing with the children in 1945 defendant never wrote or advised plaintiff of their whereabouts. Plaintiff sent gifts for her children, but was compelled to do so through defendant's parents. Defendant admitted on the trial that, although the frequent gifts plaintiff sent for the children were received, he did not tell the children from whom they came.

Plaintiff married William C. Lorenz in June, 1946. He is a cabinet finisher and had been steadily employed with the same firm for ten years prior to the trial of this case. Plaintiff and her present husband own their own home, which is situated on three acres of land and located on Route 2, Churubusco, Indiana.

In 1947, with the assistance of her husband, plaintiff employed a private detective agency to locate her children. They were located in the summer of 1947, at Turner, Oregon. It was not until the summer of 1950 that plaintiff and her husband were financially able to come to Oregon and prosecute proceedings to obtain custody of the children. They arrived in Oregon in early September, 1950, and on September 12, 1950, plaintiff, in the home of defendant's parents, saw her children for the first time since April, 1945. This proceeding was instituted,...