McGetrick v. McGetrick

• Decision Date: 02 June 1955
• Citation: 284 P.2d 352,204 Or. 645
• Parties: Margy McGETRICK, Appellant, v. Harley McGETRICK, Respondent.
• Court: Oregon Supreme Court

Page 352

284 P.2d 352

204 Or. 645

Margy McGETRICK, Appellant, v. Harley McGETRICK, Respondent.

Supreme Court of Oregon.

Argued May 3, 1955.

Decided June 2, 1955.

Lyle R. Wolff, Baker, argued the cause for appellant. On the briefs were Wolff & Johnson, Portland.

Gordon Wilson, John Day, argued the cause for respondent. On the brief were Wilson & Olsen, John Day.

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

WARNER, Chief Justice.

From an order modifying the provisions of a decree of divorce relating to the custody of the minor daughter of the parties and reducing the monthly payments required for the child's support, the plaintiff Margy McGetrick, now Mrs. Gordon Catterson, appeals.

The McGetricks were married on September 26, 1949. Their daughter Kathy was born October 3, 1951. On June 6, 1952, while they were living in John Day in Grant county, plaintiff brought suit for divorce on the ground of cruel and inhuman treatment. After trial the court entered a decree, on July 31, 1952, granting a divorce to plaintiff and awarding her the care, custody and control of Kathy, subject to the father's right to visit the child at reasonable times and obligating him to pay $50 per month for his daughter's support.

Subsequently, plaintiff left Grant county and was employed as a cook on the Rasmussen cattle ranch near Baker. While there she met and later married the foreman, Gordon Catterson. The Cattersons now maintain a home in Baker where the former Mrs. McGetrick resides with her daughter Kathy.

McGetrick has remarried and continues to live in John Day. A child has been born to this last union. Defendant's employment in the logging business, where the work is more or less seasonal, leaves him with a greatly diminished income during the three winter months.

The instant matter results from the defendant's motion for a modification of the decree of July 1952 whereby he might have his daughter with him in John Day for at least four days each month. The order of the court not only granted the father's petition but reduced the provision for monthly support and, so far as pertinent, reads:

'It is further ordered, directed, decreed and adjudged That the decree heretofore entered in the above entitled cause be, the same hereby is, modified to provide that the Defendant, Harley McGetrick be hereafter awarded the temporary custody of the minor child born to the marriage of the parties hereto, to wit: Kathy McGetrick, for a period of four days out of each month, namely from the first Friday of each month to the following Monday thereof, inclusive. That during said four day period the Defendant, Harley McGetrick shall arrange for the transportation of said child to and from its home which is presently in Baker, Oregon, and said child to be obtained by the Defendant Harley McGetrick, after 8:00 a. m. on the first Friday of each month, as aforesaid, and returned to the custody of her mother, the Plaintiff, Margy McGetrick, not later than 7:00 p. m. on the first Monday of each month, as aforesaid * * *.'

This was followed by a provision reducing the monthly payments to $35 a month for all months except the winter months of December, January and February and as to those months the payments were fixed at $25.

Baker, Oregon, is approximately 97 miles from John Day. Travelers between these two places must depend entirely on motor transportation. The element of distance and the difficulty of enjoying a proper visit with his daughter in the home of others were the factors motivating McGetrick to request the modification obtained.

The court found, and we think correctly, that there had been 'continual disagreement' between the parties regarding visitation, that the original provision for that purpose was 'impractical and unsatisfactory', and that there had been a change in circumstances since the entry of the divorce decree of July 1952 warranting a modification.

This court has always inclined to vest the custody of a child of tender years in the mother in the absence of evidence of immorality or neglect, particularly when the child is a little girl and it appears to be for the best interests and welfare of the infant to do so. McDonald v. McDonald, 197 Or. 275, 280, 253 P.2d 249; Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320; Goldson v. Goldson, 192 Or. 611, 236 P.2d 314. Here we find nothing to discredit the mother's character, nothing which marks her as unworthy in her care of and devotion to her little daughter, and nothing, which at this time would justify relieving her of the legal care, custody and control of Kathy.

However, the satisfactory character of these maternal factors are, alone, insufficient to warrant removing the child beyond the pale of the father's affection and masculine counsel when it appears that he is a man of good reputation and is considerate of the child's well-being, and that such association of father and child can be provided for safely and conveniently.

The right to custody of children of divorced parents cannot be made a pawn and employed as a reward to one party or as a punishment of the other. Edwards v. Edwards, 191 Or. 275, 278, 227 P.2d 975. We recognize that the well-rounded development of a normal child demands association with both parents and that a father is entitled to a fair opportunity to share in the child's love and affection when this end can be achieved without detriment to the child. Hixson v. Hixson, 199 Or. 559, 571, 263 P.2d 597; McDonald v. McDonald, supra, 197 Or. at page 281, 253 P.2d 249; Raw v. Raw, 195 Or. 373, 376, 245 P.2d 431. The accomplishment of this does not necessarily dictate a divided legal custody between the parents. Indeed, we have frequently indicated our disapproval of divided or alternate custody and seek to avoid it when such course is consistent with the best interests of the child. McDonald v. McDonald, supra, 197 Or. at page 281, 253 P.2d 249. Flanagan v. Flanagan, 195 Or. 611, 622, 247 P.2d 212; Raw v. Raw, supra, 195 Or. at page 377, 245 P.2d 431.

In this matter we think a complete legal custody should repose in the...