McKissick v. McKissick
| Decision Date | 14 October 1919 |
| Parties | MCKISSICK v. MCKISSICK. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.
Divorce suit by Frances McKissick against Stuart McKissick. From order denying motion to modify decree as to custody of child defendant appeals. Affirmed.
On November 7, 1917, at the suit of plaintiff, the circuit court of Multnomah county granted her a divorce from the defendant and gave her the care and custody of the minor daughter of the parties until the further order of the court, upon condition that the defendant may have the privilege of visiting the child at reasonable times and places, and with the further provision that he might have the child visit him at Portland, Or., with reasonable frequency by providing a safe and proper means of transportation and accommodations while in his care. By the decree he was required to pay to the plaintiff a fixed sum as alimony, and, further, to pay $15 per month until further order of the court, for the maintenance and support of the child. On March 13, 1918, he filed a motion in the circuit court for a modification of the decree relieving him from paying any further alimony, costs or attorney's fees as provided in the decree, and that he be given the care, custody, and control of the minor child. On March 30, 1918, the circuit court heard the application and denied it. From this order the defendant appeals.
H. L Ganoe, of Portland (L. G. English, of Portland, on the brief), for appellant.
J. LeRoy Smith, of Portland, for respondent.
BURNETT, J. (after stating the facts as above)
Notwithstanding the contention of the defendant, this is an appealable order as held in another feature of this same case reported in 174 P. 721. The court had jurisdiction of the persons and subject-matter involved in this suit and rendered a decree respecting the custody of the child. This was final and conclusive as to all matters occurring before the rendition of the decree; for section 756, L. O. L., speaking of the decree of a court having jurisdiction as aforesaid says:
"In case of a judgment, decree, or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment, decree, or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person."
Nevertheless, as stated by Mr. Chief Justice Moore in Gibbons v. Gibbons, 75 Or. 500, 147 P. 530:
The motion before us is in the nature of a new proceeding based necessarily upon matters occurring since the former decree. We cannot, in the absence of an appeal, go behind the former adjudication and make gleanings from the evidence upon which the suit was there determined or the custody of the child adjudicated. The court then determined, with the evidence before it, that, considering the best interests of the child, the mother was the proper custodian and that she was best fitted for that purpose. If the defendant would procure a new adjudication on that subject, different from the former one, he must assume the burden and show either that the plaintiff is not a suitable custodian of her own child, or that the best interest of the latter requires that its care and custody be given to him. In other words, the burden is upon him to disturb the status established by the original decree.
In his affidavit supporting his motion he says that the plaintiff took the child to Ashland, but that he has no knowledge about what disposition was made of it or in whose keeping it has been placed. He then states that about January 1, 1918, the plaintiff returned to Portland, and since about the 20th of that month has been living and cohabiting with one Frank W. Moore, as husband and wife, residing at 358 Thirteenth street in that city. He alleges upon information and belief that the plaintiff and Moore are husband and wife, and that Moore is able to care for and support her. Further deposing on information and belief, he avers that the plaintiff has abandoned the child and has shown by her acts since the filing of the decree that she is not a fit person to have the custody of the child, and, lastly, that he himself is ready, able and willing to support it. He then produces the affidavit of Mrs. Rankin, the keeper of the rooming house at the address named, to the effect that about January 20, 1918, a man and woman giving the name of Mr. and Mrs. Frank W. Moore, and representing themselves to be husband and wife, rented a single room with but one bed and were registered in a book kept by the affiant as a register of all tenants, and that they occupied said room continuously until March 12th. She further relates in substance that on the last-named date some one inquired by telephone for Mrs. Moore, whom she called from her room to the telephone; that later in the afternoon three men called and inquired for Mrs. Moore and she let them inspect the register referred to. Then one of the men, who introduced himself as Mr. McKissick, produced two photographs of the woman, which she recognized as pictures of Mrs. Moore.
Douglas Lawson gave his affidavit to the effect that on March 12th he inquired by telephone for Mrs. Moore, and when she came to the instrument speaking he recognized the voice as that of the plaintiff, Mrs. McKissick. He further states that afterwards, on the same date, the defendant and he met the plaintiff, whereupon the former addressed her as "Mrs Moore," and she replied, "I am not Mrs. Moore; I am Mrs. McKissick." He also narrates the...
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