Muhler v. Muhler
| Decision Date | 17 February 1960 |
| Parties | Barbara MUHLER, Respondent, v. Marvin MUHLER, Appellant. |
| Court | Oregon Supreme Court |
Peter I. Kolik, Milwaukie, and Harry A. Harris, Oregon City, for appellant.
Clyde Richardson, Portland, for respondent. On the brief were Wheelock, Richardson & Niehaus, Portland.
Before McALLISTER, C. J., and LUSK, SLOAN and DUNCAN, JJ.
Defendant appealed from an order of the circuit court for Multnomah county, dated November 3, 1958, which changed the custody of the minor child of the parties from defendant to plaintiff.
On March 31, 1953, a decree of divorce by default was granted to plaintiff against defendant, but at plaintiff's request custody of the child, then two years of age, was awarded to defendant. The award of custody was made only after the court had questioned plaintiff closely and explained her rights to her.
The decree of divorce provided in part that:
'* * * the court specifically reserves the right to determine the future custody of said child in the event of a change of circumstances warrants and subject to the right of reasonable and seasonable visitation by plaintiff.'
On March 30, 1953, the court had dictated into the record a statement which does not appear in the decree, to the effect that the court was of the 'opinion' that in the event of an application for change in custody in the future 'the court will not require any evidence of substantial changed conditions, but will decide the custody matter depending upon what is for the best interests and welfare of the child.'
On appeal defendant takes the position, first, that by the statement into the record last above quoted, the court sought to reserve a right to avoid the established rules governing modifications; and, second, that this purpose was accomplished because the record shows no change of circumstances sufficient to justify a change of custody.
During the modification hearing the decision in Bogh v. Lumbattis, 203 Or. 298, 280 P.2d 398, 399, was referred to as authority for the proposition that to warrant a change in custody the conditions that have changed must be shown to be adverse to the party from whom the custody is sought to be taken. However, this construction of the Bogh decision is not borne out by the language used, as prior to affirming the trial court in denying the motion for change of custody the court stated:
The Bogh case cited and relied on Leverich v. Leverich, 175 Or. 174, 152 P.2d 303, 305. The Leverich opinion stated the rule to be that a decree awarding custody may not be modified 'unless changed conditions are shown, indicating, to the satisfaction of the court, that modification would be for the best...
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Shrout v. Shrout
...207 P.2d 1049; Gallagher v. Gallagher, 187 Or. 625, 632, 212 P.2d 746; Bogh v. Lumbattis, 203 Or. 298, 305, 280 P.2d 398; and Muhler v. Muhler, Or., 349 P.2d 661. This court has also generally held that children of tender years, particularly girls, should be awarded to the custody of the mo......
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Crane v. Crane
...of the October 1968 divorce decree there must have been a change in the circumstances of the parties since then. Muhler v. Muhler, 220 Or. 321, 349 P.2d 661 (1960). The reasons for this are to avoid constant litigation and more importantly to provide young children stability of environment.......
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Marriage of Greisamer, Matter of
...1 To the effect that a change in circumstances of the non-custodial parent may justify a change in custody, see Muhler v. Muhler, 220 Or. 321, 349 P.2d 661 (1960); Goldson v. Goldson, 192 Or. 611, 620, 236 P.2d 314 (1951).2 See e.g., Rayner v. Rayner, 253 Or. 523, 454 P.2d 856 (1969) and Ho......