Merges v. Merges

• Decision Date: 02 December 1919
• Citation: 186 P. 36,94 Or. 246
• Parties: MERGES v. MERGES.
• Court: Oregon Supreme Court

186 P. 36

94 Or. 246

MERGES v. MERGES.

Supreme Court of Oregon

December 2, 1919

In Banc.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Divorce action by Mary Edwards Merges against Ernest E. Merges. On plaintiff's motion to change a decree regarding the custody of their child. Decree for plaintiff, and defendant appeals. Reversed, with instructions.

The origin of this litigation was a suit for divorce by Mary Edwards Merges against her husband, Ernest E. Merges, begun November 15, 1912. The present contention is about the custody of the minor son, Edward E. Merges, aged four years at the commencement of the litigation in 1912. The original decree provided that the plaintiff and the defendant should have custody of the child alternately, at times prescribed. Afterwards, on February 3, 1913, the defendant moved the court for a modification of the decree respecting the control of the son so as to give it to the defendant exclusively, and the plaintiff at the same time filed her consent to that modification. Accordingly it was so done. On January 11 1916, the plaintiff filed a motion so to change the next previous decree as to allow her to visit and see the child at reasonable and necessary times, and that the custody of him be equally divided between the plaintiff and the defendant to each one half of the time. The court passed an order to be served upon the defendant requiring him to show cause why the motion should not be allowed. With it he filed a wealth of affidavits from upwards of 50 of the most eminent citizens of Portland to the effect that the defendant was intensely devoted to the welfare of the child and gave him every attention that could be bestowed upon him in the way of care of his health and conduct; that the little fellow was greatly attached to his father and to the children living in his neighborhood and had thus far shown the effects of training in his exemplary conduct. The affidavits show that the affection manifested between the father and son is unusually warm and intense.

The parties filed their own affidavits, and throughout their personal showing runs a vein of antagonism toward each other which clouds the case.

Without any order having been made, the parties and their attorneys on May 23, 1916, stipulated that the matter of the custody of the child "shall be arranged to have the minor son of plaintiff and defendant visit the plaintiff, while he is in the city of Portland, after school hours during the afternoons of Tuesdays and Thursdays each week and during the daytime of Saturday of each week between the hours of 9 o'clock a. m. and 7 o'clock p. m. Arrangements concerning the visitation of said child during vacations and at other times shall be decided, in case of the inability of plaintiff and defendant to agree, by an agreement between the attorneys for plaintiff and defendant." No action of the court was taken by virtue of this stipulation, and on September 21, 1918, the plaintiff moved that:

"That part of said decree by which the defendant is granted the care and custody of the minor child of the plaintiff and the defendant herein, named Edward E. Merges, now of the age of about ten years, be set aside, and that the care and custody of the said minor child, Edward E. Merges, be given to the plaintiff, and that the plaintiff have the sole care and custody of the said minor child."

In addition to the affidavits, the court heard testimony of the parties and certain additional witnesses, and without making findings of fact gave an order of date June 12, 1919, in substance awarding the custody of the child to the plaintiff from and after June 14, 1919, the end of his school year giving the defendant the right to have him with him one-half of the time through the summer vacation, and during the remaining portion of the year each alternate week during Saturday and Sunday, together with the right to visit him at all other reasonable times. The defendant appeals from this order.

Wallace McCamant, of Portland (John H. Stevenson and McCamant Bronaugh & Thompson, all of Portland, on the brief), for appellant.

E. E Heckbert, of Portland, for respondent.

BURNETT, J. (after stating the facts as above).

During the progress of this litigation concerning the custody of the child, the plaintiff married another husband.

The testimony was heard and the case taken under advisement on February 11, 1919. The decree was rendered, as stated, June 12, 1919. Although the plaintiff had testified that she had no home, and that on account of her husband's being in the army they could not have a permanent residence, the court recited that it appeared to its satisfaction "that the plaintiff has a home established in Portland, in the county of Multnomah, state of Oregon." As narrated in the brief of the plaintiff, some affidavits are filed in this court to the effect that after the hearing of the case below she established herself in a home at 535 East Nineteenth street in Portland; that the defendant had separated from his wife; and that the nurse he had had in charge of the child had left his employment.

As a preliminary to the consideration of the case, all the affidavits filed in this court and procured after the decree of the circuit court had been entered must be laid out of the calculation. In such cases as this the court has only an appellate jurisdiction, and the statute (L. O. L. 556) plainly says that upon an appeal from a decree given in any court the suit shall be tried anew upon the transcript and evidence accompanying it. This is not a case where the parties have settled their dispute or one where the questions involved have become merely academic, but is one in which the controversy still persists and must be heard upon its merits. We cannot reopen the case and allow additional testimony to be taken upon either side for the first time in this court. It is true that in certain cases the court has heard and considered ex parte affidavits on motions to dismiss appeals. For instance, in Ehrman v. Astoria Railway Co., 26 Or. 377, 38 P. 306, the plaintiff had brought suit to foreclose a mechanic's lien. Having been defeated in the circuit court, he appealed, but afterwards, before the appeal was heard, instituted action on his claim and attached the property of the defendant. This state of affairs was made to appear by uncontradicted affidavits in this court, and the appeal was dismissed on the ground that, because he had begun an action at law and had attached property, the plaintiff had waived his pending appeal. In State ex rel. v. Webster, 58 Or. 376, 114 P. 932, the relator sued to have the defendant make a showing of the number of days he had been absent from the office of county judge on private business. Pending the appeal by the relator, the defendant resigned the office mentioned, and the court dismissed the appeal on the ground that the question had become purely academic and did not present any real controversy. In many other cases the court has dismissed the appeal when the contention is shown without contradiction to have been ended. Such instances are Moores v. Moores, 36 Or. 261, 59 P. 327; Thomas v. Booth-Kelly Co., 52 Or. 534, 97 P. 1078, 132 Am. St. Rep. 713. The matter is thus aptly stated in Livesley v. Johnston, 48 Or. 40, 48, 84 P. 1044, 1046, where it was urged by the appellants that the parties had settled the dispute and canceled the contract upon which the suit was based, Mr. Chief Justice Robert S. Bean speaking for the court:

"This is an appellate court, constituted and organized to revise and correct the proceedings of the trial court, when regularly brought before it by appeal, and has no original jurisdiction, except such as may be incident to and in aid of its appellate powers. * * * Its inquiry is ordinarily confined to an examination of the record of the court below as embodied in the transcript but where the appellant has, by some act of his subsequent to the rendition of the judgment or decree appealed from, waived the right of appeal or otherwise terminated the controversy, such fact may be shown by evidence dehors the record, and the appeal will be dismissed because there is no longer any substantial controversy between the parties. * * * But, where the relief sought is based on newly discovered evidence, the remedy is not by motion in this court, but by an original suit to vacate or annul the decree. * * * The facts upon which the motion in question is based are in the nature of newly discovered evidence, and the inquiry presented involves the consideration and decision of controverted questions of fact. The plaintiffs deny that any settlement of the subject-matter of the litigation was ever made by them with Johnston. This question cannot be tried out on ex parte affidavits in this court, and the defendants' remedy, if any, must be found in some other proper proceeding."

So here, if any change in the affairs of the parties here involved has occurred since the hearing in the court below, which would authorize an alteration in the custody of the child, it must be made the subject of litigation in the court of original jurisdiction. We are without power to consider such a showing.

The defendant contends that the father has the preference in the custody of the children, and cites Jackson v. Jackson, 8 Or. 402, in support of this theory. That case was decided before the enactment of section 7057, L. O. L., which statute declares that:

"Henceforth the rights and responsibilities of the parents, in the absence of misconduct, shall be equal, and the mother shall be as fully entitled to the custody and control of the children and their earnings as the father."

Primarily therefore, under our statute, the parents have equal rights...