Nichols v. Nichols

• Decision Date: 06 June 1944
• Citation: 149 P.2d 572,174 Or. 390
• Parties: NICHOLS v. NICHOLS.
• Court: Oregon Supreme Court

149 P.2d 572

174 Or. 390

NICHOLS v. NICHOLS.

Supreme Court of Oregon

June 6, 1944

Appeal from Circuit Court, Clatsop County; Howard K. Zimmerman Judge.

Suit by Cecil E. Nichols against Margaret Nichols for divorce. From an order refusing to set aside and vacate a default decree defendant appeals.

Order reversed, and cause remanded, with directions.

Irving C. Allen and Chris Schuebel, both of Seaside for appellant.

A. W. Norblad, of Astoria (with Norblad & Norblad of Astoria, on the brief), for respondent.

Before BAILEY, Chief Justice, and BELT, ROSSMAN, LUSK, and HAY, Justices.

BELT, Justice.

The court having denied the motion to dismiss the appeal from an order refusing to set aside and vacate the original default divorce decree ( Nichols v. Nichols, Or., 143 P.2d 663) the cause is now here on the merits.

The sole question is whether the decree entered August 13, 1942 was procured by fraud. It is the contention of the defendant that she was induced not to contest the divorce proceeding, or to make any appearance therein, on account of an agreement had with the plaintiff whereby she should have the permanent custody of the three minor children-Dorothea, a daughter aged 7 years; Cecil, a son, 4 years; and Linford, a son 2 years-in the event a decree was obtained by him. Defendant charges in substance that plaintiff was not acting in good faith and that, at the time of making such agreement, had no intention of complying therewith but contemplated securing custody of the children by a modification of the decree at the earliest opportunity. Defendant further avers that she relied upon the agreement thus made and refrained from contesting the suit.

In determining whether the circuit court abused its discretion in refusing to vacate the original decree on the ground of fraud, the entire record is before us for consideration. What did the plaintiff have in mind when he agreed that the custody of the children should be awarded to the mother? Was such agreement merely sham and pretense made merely to lull her into a false sense of security? Why did the plaintiff concede that she was a fit and proper person to have custody of the children when the decree was granted and then, a few months later, endeavor to show she was wholly unworthy to care for them?

In plaintiff's affidavit supporting the motion, on March 29, 1943, to modify the decree by awarding custody of the children to him, he thus explains why he consented to the custody being given to the mother in the original decree:

"*** that by agreement between the said parties, the decree in this matter gave the care and custody of Dorothea Grace Nichols, Cecil E. Nichols, Jr., and Linford Adelbert Nichols, the minor children of said parties, to the defendant. The reason for the decree giving her the custody of the children grows out of the fact that I was employed in the Civil Service here in Astoria and living a considerable distance from relatives and friends and had absolutely no means of providing ample care for the children at that time. The only hope I had of finding an agreeable home for them was to place them with my sister and her family who live in Seattle, Washington, but I was confronted with the difficulty that if I moved to Seattle before the divorce was granted I would be unable to secure a decree of divorce in Oregon on account of residence requirements. Consequently, my only recourse was to allow her the custody of the children and then relocate in Seattle and after I had made satisfactory arrangements for the care of the children, to ask the court to modify, change and alter the decree." (Italics ours.)

He further avers therein that:

"If I am allowed custody of my children, I will remove them immediately to the home where I am now living with my sister, her husband and two older children, two boys being 17 and 13."

In addition to plaintiff's affidavit there was also the affidavit of Illene Beymer, 27 years of age, who, at the request of the plaintiff, went to the home of defendant's mother, Myrtle McKeown-where the children were kept-in order to "get evidence" to support the motion to modify the decree. Miss Beymer, whom, it appears, the plaintiff has now married pending this appeal, made some rather vague and derogatory statements concerning the character of the defendant and her mother.

That plaintiff, at the time of the original decree, contemplated securing custody of the children is clearly shown by the evidence. He immediately endeavored to get evidence against the defendant-going to the extreme of writing, on March 12, 1943, to defendant's brother, Rev. Lowry McKeown, to see if he would not make an affidavit-prepared by plaintiff-to the effect that the children would be better cared for in the home of plaintiff's sister, Mrs. R. F. Isbell, who resided in Seattle, Washington. McKeown refused to sign the affidavit and asserted confidence in the "Christian integrity" of his mother.

As evidencing the plan or scheme of the plaintiff, consider the extensive correspondence...