Phillips v. Phillips

Decision Date31 January 1945
PartiesPHILLIPS <I>v.</I> PHILLIPS
CourtOregon Supreme Court
                  See 17 Am. Jur. 346
                  27 C.J.S., Divorce, § 292
                

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

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

Suit for divorce by Louisa M. Phillips against Allan Q. Phillips. From a decree dismissing the suit, plaintiff appeals.

REVERSED.

W.C. Winslow, of Salem, for appellant.

Rhoten & Rhoten and Sam F. Speerstra, all of Salem, for respondent.

Suit for divorce by the plaintiff, Louisa M. Phillips, against Allan Q. Phillips. From a decree dismissing the suit, plaintiff appeals.

BRAND, J.

The complaint is in the usual form as to the matters of the marriage of the parties, the residence of the plaintiff, her previous good conduct, and as to the alleged cruel and inhuman treatment accorded her by the defendant. The specific allegations of cruelty are as follows:

"The defendant herein is quarrelsome both with plaintiff and the children of said defendant, and when quarrelsome curses and swears at both the children and this plaintiff. That defendant is mean to the children. That defendant has threatened to knock this plaintiff through the window, has threatened to kill plaintiff and threatened upon several occasions to hit her. That said defendant did, about four years ago, kick plaintiff, severely injuring her.

"That said conditions have become such that it is impossible for plaintiff and defendant longer to live together as husband and wife."

The complaint further alleges that the defendant is the owner of the real property which is described therein and which totals some two hundred sixty-eight acres in Marion County, Oregon.

Plaintiff alleges that the children referred to in the complaint are not the children of the plaintiff and the defendant, but are the children of the defendant only; that one of the children, Ethel Phillips, is of the age of fifteen years; that the defendant is mean and abusive to said child and that in the opinion of the plaintiff it would not be safe to leave said child with the defendant. The plaintiff, therefore, seeks custody of the minor child of the defendant together with temporary support for herself; permanent alimony; support for the minor child, Ethel Phillips; reasonable attorney's fees; and a one-third interest in the real property of the defendant.

The answer of the defendant was a general denial.

On the 13th day of September, 1943, the case went to trial upon the issues made by the complaint and answer. After the presentation of evidence, both parties rested and thereafter and on September 17, 1943, the defendant filed a motion for the reopening of the above suit for the purpose of taking additional testimony. No affidavit was filed in support of the motion, but in the motion itself it was represented to the court that the plaintiff had been previously married and had two minor children who were not then and for several years past had not been in her custody. It was stated that the evidence to that effect would be offered on the question of the plaintiff's demand for the custody of the defendant's children. No other grounds for reopening the case were set forth in the motion.

On September 28 the defendant moved the court for an order permitting the filing of an amended answer which was tendered with the motion. In support of this motion, defendant filed an affidavit containing the following allegation:

"That since the previous hearing in this suit, my son, Delmar Phillips, has told me that during the strawberry season of 1943 he observed the plaintiff and my son, Donald Phillips, commit an act of adultery in the cabin at my farm home.

"Previously, I did not know of the aforesaid testimony * * *." The amended answer repeats the accusation as above stated. The defendant does not seek a divorce for himself, but prays only for the dismissal of plaintiff's suit.

On October 18, by order of the court, the cause was reopened and on January 15, 1944, additional testimony was taken upon the new matter set forth in the amended answer. The court made general findings in favor of the defendant and dismissed the plaintiff's suit, except as to $75 suit money which had been awarded to the plaintiff and had not been paid. The plaintiff received judgment for the sum of $75 and appeals from the decree dismissing her suit.

BRAND, J.

The first question for consideration is whether the plaintiff has sustained the burden of proof upon her allegations of cruel and inhuman treatment or personal indignities rendering life burdensome.

The defendant is the father of six children by a former marriage. His wife died in 1933 and in November, 1938, he married the plaintiff. The names and ages of his children at the time of trial, were as follows: Delmer, fourteen; Ethel and Elbert (twins) fifteen; Don, sixteen; Wayne, eighteen; and Claude, twenty. At that time Wayne and Claude were in the air corps. Delmer, the youngest, was staying with his father. Ethel, Elbert, and Don had voluntarily left their father's home and were living with plaintiff, their step-mother. The plaintiff was twenty-six and the defendant fifty-three years of age.

The defendant was the owner of two hundred eighty-eight acres of land, only two hundred sixty-eight acres thereof being described in the complaint. The land is all clear of debt, the final mortgage having been paid off in July, 1943. Of the 100-acre home place, twenty to twenty-five acres are under cultivation. Of the 128-acre place, forty to fifty acres are under cultivation. The rest is apparently uncultivated. The defendant rents other lands in addition to those owned by him. He raises strawberries and grain and has some cows, hogs, and chickens. He has taken off about one million feet of timber and still has some "nice timber" left. Undisputed evidence indicates that the defendant has received very substantial sums of money for his strawberry crops and that shortly before the parties separated, he stated that he had $5,000 in the bank derived therefrom.

For five years, as a widower, the defendant had a long and hard struggle to maintain his family and develop his property. The home consisted of an old three-room house without electricity or any modern conveniences. Water for all domestic use was obtained from the creek and was carried to the house by bucket. The plaintiff undoubtedly knew of these conditions when she married the defendant, but the fact remains that as the financial condition of the defendant improved, we find no evidence of any attempt or willingness by him to ameliorate the primitive hardships of the earlier period. We think the evidence as a whole demonstrates that the defendant was a hard man to live with — profane, suspicious, and ill-tempered. We shall review, briefly, portions of the evidence.

Near the family home there is a bunk house in which some of the boys slept. The plaintiff testified that shortly after plaintiff and defendant were married, Claude, the oldest son of the defendant, was sick with a slight fever and had gone to bed in the bunk house. She went out to see him. The defendant followed her out and, finding her in the bunk house, became angry and told her to get out. She protested and as they started back to the house, the defendant swore and kicked her. The defendant, when questioned concerning the incident, answered, "I batted her with my knee, yes." He testified that Claude was in bed and had his arms around plaintiff's neck and that he told the plaintiff that if she was going to act that way, "she was done." Claude was fifteen years of age at that time. Plaintiff testified that she was merely sitting on the edge of her stepson's bed and he did not have his arms around her. She denied any improper conduct.

She testified further that on one occasion the defendant said to her, "I have a notion to beat you to death," and that he often swore at her, sometimes employing what are known as fighting words, apparently without the proverbial accompanying smile. The fact of his profanity is verified by the testimony of some of the children and by his own admission.

On another occasion, a dispute arose as to whether the defendant's daughter should be allowed to go to Salem with the plaintiff. Both parties became angry. The plaintiff testified that, "He [the defendant] was going to hit me and knock me through the car window." This incident is verified by the testimony of Don and Elbert. Concerning the same incident, the defendant testified that they had quarreled and said, "I told her I would slap her face through the window if she didn't shut up."

It appears further that there was general lack of discipline and peace in the home and that there were "a lot of quarrels out there." On one occasion Wayne and Don started to fight over some matter not disclosed by the evidence. The defendant testified that he told Wayne to leave Don alone. Wayne said, "You are not man enough to make me." The defendant testified, "I took him down and choked it out of him, that is what I done * * *." The fight ended when the plaintiff Don, and Claude forcibly separated the defendant and Wayne, whereupon the defendant "started in cursing the three of them and told Louise [the plaintiff] she could leave, he...

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  • Paquette v. Paquette, 83-193
    • United States
    • United States State Supreme Court of Vermont
    • 21 Junio 1985
    ...could not be determined because it had not been briefed or argued. Id. at 486, 166 Cal.Rptr. at 586-87. But see Phillips v. Phillips, 176 Or. 159, 172, 156 P.2d 199, 203 (1945) (refusing to grant custody of 15-year-old girl to stepfather on ground that girl was not a child "of the Thus, whe......

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