McFadden v. McFadden

• Decision Date: 18 January 1956
• Citation: 206 Or. 253,292 P.2d 795
• Parties: Burke Lane McFADDEN, Respondent, v. Ludmila F. McFADDEN, Appellant.
• Court: Oregon Supreme Court

Page 795

292 P.2d 795

206 Or. 253

Burke Lane McFADDEN, Respondent, v. Ludmila F. McFADDEN, Appellant.

Supreme Court of Oregon.

Jan. 18, 1956.

Bert McCoy, Eugene, argued the cause and filed a brief for appellant. With him on the brief was Donald F. Bach, Eugene.

Wolf D. von Otterstedt, Eugene, argued the cause for respondent. With him on the brief were Husband, Fort & Johnson, Eugene.

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

WARNER, Chief Justice.

The defendant-appellant, Ludmila F. McFadden, in this matter, was awarded a decree of divorce in the circuit court of Lane County on September 23, 1953. Burke Lane McFadden, the plaintiff in that suit and the respondent here, and the appellant are the parents of three children, Joseph Lane McFadden, then about seven years old, Janet Frances McFadden, then five years old, and Jeanette Lillian McFadden, then nearly four years old. The decree of that date gave the care, custody and control of Joseph and Jeanette to the father, and of Janet to the mother, Mrs. McFadden, now residing and employed by the telephone company in Sacramento, California. The right of visitation was vested in both parents as to the children in the care or custody of the other.

The court, then acting through Judge Skipworth (now retired), indicated a desire to review the status of the custodial arrangement a year hence. This prompted the mother to file an application for modification of the decree in August, 1954, wherein she sought the custody of all three children. After a hearing before Judge Frank B. Reid, Judge Skipworth's successor, the earlier decree was modified on October 8, 1954, wherein custody of Joseph was continued in the plaintiff father, who resides near Junction City, Oregon; and the mother was given the custody of the daughter, Jeanette, thereby placing the two sisters together in the California home of the defendant-appellant. The modification order continued the right of visitation in each parent as to the child or children not in their respective custody. Being dissatisfied with the result Mrs. McFadden appeals and asks us to give the custody of the boy to her instead of to his father. That is the only problem presented by the appeal, and that problem is simplified by the court's finding, in which we concur, that the evidence discloses that '* * * both the father and mother are of good moral character * * *'. Indeed, the problem resolves itself into but one question--does the evidence support the circuit court's holding that the custodial disposition as made by the modification will be conducive to the welfare of the children concerned?

After the entry of the divorce decree, the father retained actual care and custody of Joseph, the boy, but with some assistance from the boy's paternal grandparents who live approximately a half mile from Mr. McFadden's homeplace. The little girl, Jeanette, while technically in the custody of her father, was actually under the control of her father's parents (where she had been placed by the father), and with whom she resided.

A somewhat similar condition prevailed as to the daughter, Janet. Although given to the custody of her mother she actually resided with an aunt and uncle in Sacramento, who live only two blocks distant from the home of Janet's mother.

Thus, we find, at the opening of the matter, all of the children separated from each other, and the little sisters not only living in different states, but in the main receiving their custodial care and training by strangers to the first decree of the court.

No serious issue is made that either parent neglected the children committed to his or her custody. It appears that each child is frequently visited by the parent having control of them. Nor is there any evidence challenging the character of the grandparents, or aunt or uncle, or their treatment of the little girls for whom they cared at the instance of the parent having technical custody of such children.

However, the court noted, and we think wisely, that the actual custodial arrangement for the little girls, as the court found it, made it '* * * a bad situation all around for all the children * * *, and that the two little girls should by all means be together.' This later arrangement was made by the judge upon condition that the mother take both of the daughters into her home in Sacramento, '* * * where they should live and sleep.' This direction was also coupled with a warning that if not done, the court would entertain a further petition as to their future care and custody.

With reference to the boy, and as justification for continuing this custody in the father, the trial judge found that Joseph had been with his father ever since he was two years old; that he was very much attached to his father who gives him good care; that the boy is being raised on a farm near Junction City, and attending a country school where he is doing very well. The court described the boy as somewhat timid, and deemed it unwise to move the child at this time to the place of his mother's residence.

This Court will not ordinarily disturb a decree respecting the custody of the children when the case is primarily one of evidence sufficient to warrant the conclusion reached by the trial court when fortified by his advantage in observing the witnesses. Henry v. Henry, 156 Or. 679, 683, 69 P.2d 280; Norcross v. Norcross, 176 Or. 1, 5, 155 P.2d 562. In terms of the record facts here we find the evidence supports the court's disposition made for the custody of the children, unless it can be truly said the circuit court in doing so ran counter to some controlling rule of law.

Both times the matter was before the circuit court the question of custody was given unusually close and careful consideration. One of the impelling reasons for such deliberate inquiry was prompted by the fact that the mother, following close upon and as an incident to the birth of her last child, and been a mental patient in the Oregon State Hospital from December, 1949 to the last of April, 1951. It was this situation which made Judge Skipworth apprehensive that there might be a recurrence of the appellant's mental illness which necessitated her commitment in 1949; and which apparently prompted his desire, above referred to, to review the custodial decree a year later. Judge Reid, relying upon the testimony of two physicians, respectively called by plaintiff and defendant, and his own observations of Mrs. McFadden, found that the health of the mother had so improved since the entry of the divorce decree that he had no apprehension of a recurrence of the trouble which had dictated her original commitment to the State Hospital, and the concern expressed by Judge Skipworth. See Richardson v. Richardson, 182 Or. 141, 144, 186 P.2d 398.

The mother urges error, saying that because she was not the party at fault at the time of the divorce she was entitled to a custodial preference over the father; that the court erred in failing to adhere to what she reads as a mandatory rule that children of tender years shall always be awarded to the mother; and lastly, that the visitation privileges have the effect of creating a divided custody with all of its usual incident evils.

At the outset we observe that the mother imputes to the rules of law upon which she rests her appeal an inflexibility not warranted by the statements of this Court.

Appellant correctly states the cardinal rule governing matters of this...