Marriage of Greisamer, Matter of

Decision Date14 October 1976
Citation555 P.2d 28,276 Or. 397
PartiesIn the Matter of the Dissolution of the MARRIAGE OF Thomas Walter GREISAMER, Respondent, and Mildred Rose Greisamer, Petitioner.
CourtOregon Supreme Court

Ort W. Goakey, Klamath Falls, argued the cause for petitioner.

Donald M. Ratliff, Merrill, argued the cause for respondent.

O'CONNELL, Justice.

This is a child custody dispute, which comes to us from the Court of Appeals on a petition for review filed by the child's mother, who attacks the decision of the Court of Appeals reversing a judgment of the trial court granting her the custody of the children. Greisamer and Greisamer, 24 Or.App. 819, 547 P.2d 155 (1976).

Shortly after moving to Oregon, the father filed for a separation from the mother in Klamath County circuit court. Both parties were represented by counsel throughout the proceedings and submitted evidence directed to the issue of child custody. Subsequently, on November 20, 1974, the court entered a decree of separation and awarded custody of the two young boys to the father. On December 8, 1974, dissolution proceedings were begun by the father. The case was tried during June of 1975. After showing that she had obtained employment and acquired a home, the mother introduced evidence of the father's conduct prior to the separation suit. Custody was awarded to the mother. On appeal by the father, the Court of Appeals concluded that the trial court erroneously admitted evidence in the dissolution proceeding concerning events that had been the subject of testimony on the custody issue in the earlier separation suit. The Court of Appeals, while noting that the mother had 'very commendably' improved her circumstances in the interval between the two decrees, found insufficient change of circumstances inasmuch as '(t)he mother's evidence against the father related almost entirely to sordid events that had occurred before the custody decree in the separation suit.' 24 Or.App. at 826, 547 P.2d at 159.

On review, the central issue presented is whether the modification of custody rules preclude the consideration of evidence of events occurring prior to the previous custody decree which reflect upon the suitability for continued custody by the parent who was originally granted custody.

The general rule regarding modification of custody awards is stated in Henrickson v. Henrickson, 225 Or. 398, 402--03, 358 P.2d 507, 509--10 (1961):

'The net effect of our earlier decisions is to render every prior custody order res judicata in any later modification matter * * *. The moving party is, therefore, confined to matters alleged in his motion and supporting affidavit and, as to these matters, has the burden of proof.

'* * * In order to justify a modification for the care and custody of a minor child the petitioner is under the burden to show that it would enhance the welfare of the child, or that the change in circumstances since the rendition of the last decree has been such as injuriously affected the child.'

It is clear from this statement of the rule that the original decree awarding custody to one of the contesting parents will not be disturbed unless the plaintiff seeking a change in custody adduces evidence showing (1) that subsequent to the original decree events relevant to the capacity of the plaintiff or the custodial parent to properly take care of the child have changed, and (2) that considering the change in circumstances in the context of all relevant evidence it would be for the best interests of the child to change the custody from the custodial parent to the other. Step one in the inquiry may be satisfied by showing that after the original decree awarding custody was entered, the custodial parent's circumstances made him less capable of providing care for the child, or that the circumstances of the plaintiff seeking a change in custody had improved, or that both such conditions arose following the initial decree. 1

In the present case there was no evidence showing that the father's circumstances had changed; we have evidence only of the improved circumstances of the mother. The second step in the analysis requires an appraisal of the mother's change in circumstances as it affects the best interests of the child. Such an appraisal necessarily calls for a comparison between the child's interests which will be served if it remains with the father and the child's interests which will be served if custody is awarded to the mother. In making this comparison, the father's deficiencies existing at the time of the first decree if they are relevant to the inquiry must be put on the scale just as they were put on the scale in the first proceeding. It is apparent that the father was awarded custody in spite of his shortcomings only because the mother was not in a position economically at that time to do even as well as ...

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48 cases
  • Hogge v. Hogge
    • United States
    • Supreme Court of Utah
    • June 17, 1982
    ......        By statute, the district court has continuing jurisdiction over the subject matter of a divorce and may later make such changes in custody provisions as it determines are "reasonable ...282, 560 P.2d 800 (1977); Smith v. Smith, Fla.App., 212 So.2d 117 (1968); Matter of Marriage of Greisamer, 276 Or. 397, 555 P.2d 28 (1976); Goldstein v. Goldstein, 115 R.I. 152, 341 A.2d 51 ......
  • Dewolfe v. Miller
    • United States
    • Court of Appeals of Oregon
    • October 18, 2006
    ......          Greisamer and Greisamer, 276 Or. 397, 401-02, 555 P.2d 28 (1976) (italics added); see also Henrickson, 225 ... decisions is to render every prior custody order res judicata in any later modification matter." (Italics added.)). .         Under such res judicata principles, a purportedly changed ......
  • Teel-King, Matter of Marriage of
    • United States
    • Court of Appeals of Oregon
    • August 6, 1997
    ...... In order to modify that judgment, father first must show that there has been a substantial change of circumstances. State, Department of Human Resources ex rel Johnson v. Bail, 325 Or. 392, 938 P.2d 209 (1997); Matter of Marriage of Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976). It is not sufficient merely to show that something has changed. Father must show that the new conditions relate to events relevant to the capacity of either parent properly to take care of the child. Bail, 325 Or. at 392, 938 P.2d 209. The events ......
  • State Dept. of Human Resources ex rel. Johnson v. Bail
    • United States
    • Supreme Court of Oregon
    • June 12, 1997
    ...... from a parent's illegal act of custodial interference should be disqualified, as a matter of equity, from triggering an analysis of a potential change in custody. That proposed rule of law ...        See also Greisamer and Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976) (same two-step analysis). In the absence of ......
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