Phillips v. Phillips

• Decision Date: 01 July 1944
• Citation: 175 Or. 14,149 P.2d 967
• Parties: PHILLIPS <I>v.</I> PHILLIPS
• Court: Oregon Supreme Court

175 Or. 14

149 P.2d 967

PHILLIPSv.

PHILLIPS

Supreme Court of Oregon.

Argued May 23, 1944.

Affirmed July 1, 1944.

Rehearing denied July 25, 1944.

Divorce

1. A child of tender years should be awarded to its divorced mother unless she is grossly immoral or subjects the child to abuse or gross neglect, provided she is in other respects at least a fairly good parent.

Divorce

2. An unappealed from order entered upon an ex parte showing, after a hearing of which divorced wife had no actual notice that she was deranged and was unfit to have custody of minor daughter, was conclusive on question of wife's fitness as of time of entry of the order.

Divorce

3. Evidence warranted order awarding permanent custody of seven-year-old girl to her divorced mother who remarried, as against contention that the mother was a maniac with homicidal tendencies.

Divorce

4. An order awarding permanent custody of child to divorced mother who was residing in another state could not be objected to on ground that it was improper for Oregon courts to relinquish jurisdiction of the child.

                  See 17 Am. Jur. 518
                  27 C.J.S., Divorce, § 309
                

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

Appeal from the Circuit Court, Klamath County.

CHARLES H. COMBS, Judge.

Suit for divorce by Haines L. Phillips against Elva E. Phillips, wherein defendant filed a cross-complaint. The defendant was awarded decree of divorce and the custody of the child, and from a subsequent order awarding the custody of the child to defendant, plaintiff appeals.

AFFIRMED. REHEARING DENIED.

B.G. Skulason, of Portland, for appellant.

Richard B. Maxwell, of Klamath Falls, for respondent.

LUSK, J.

This is a controversy over the custody of a minor child, Jo Ann Phillips, now approaching her seventh birthday. Her parents, the plaintiff and defendant in the suit, were married in 1931 and divorced January 15, 1940. The divorce suit was commenced by the plaintiff, Haines L. Phillips, who, in his complaint, alleged that "the defendant is a suitable and proper person to be awarded the custody of said minor child, Jo Ann Phillips." Elva E. Phillips (now Reynolds), the defendant, filed an answer and cross-complaint, and was awarded the decree of divorce and the custody of the child. This order was modified in April, 1940, so as to give the father the right of visitation. His exercise of that right was attended with disputes, quarrels, bitterness, and even shows of violence — once on the public streets of the city of Klamath Falls. On July 12, 1940, the plaintiff remarried, and his present wife, both before and since that event, has taken an active part in the controversy.

In July, 1940, Mrs. Reynolds took the child to the state of Washington. During her absence, in August, 1940, the plaintiff filed a motion, supported by affidavit, for modification of the decree so as to award him the custody of the child. Mrs. Reynolds had no actual knowledge of the motion or of the hearing thereon. Her attorney had withdrawn from the case and she had no attorney of record at the time. The only service of the motion was made on the clerk of the court in conformity with the provisions of § 10-606, O.C.L.A. The hearing was ex parte, and at its conclusion the late Judge Carl Hendricks, who presided, entered an order awarding the custody of the child to the plaintiff. In this order, dated September 6, 1940, the following recitals will be found:

"It further appearing to the court that up to the time of the departure of the defendant as aforesaid the plaintiff faithfully complied with all the provisions of the decree herein as modified, on his part to be performed, and that in almost every instance when the plaintiff called for said minor child in accordance with the terms of the decree as modified the defendant placed obstacles in his way by refusing to allow him to see and have the companionship of said child at reasonable hours and by violently abusing and assaulting the plaintiff; and it further appearing that the defendant is a neurotic and unbalanced person and that she has many times since the entry and modification of said decree threatened to kill said child and to commit suicide; and that the defendant is no longer fit to have the custody of said child, that as long as said child remains in the custody of the defendant the child is in danger and that in any event the defendant will poison the mind of the child against the affiant and by her conduct will permanently injuriously affect the mind and character of the child."

In January, 1941, the plaintiff learned that Mrs. Reynolds and Jo Ann were in Mt. Vernon, Washington, proceeded thither, employed counsel, and sued out a writ of habeas corpus in the Superior Court of the State of Washington for the County of Skagit. Jo Ann was produced in court, and, after a hearing, the court on January 25, 1941, entered an order allowing the writ, and granting the care, custody and control of the child to the plaintiff, who returned with her to his home in Klamath Falls.

There were no further proceedings until December, 1942. In the meantime Mrs. Reynolds continued to live in Washington. She first worked as a clerk in a department store in Mt. Vernon, and later was employed for a year and a half in a responsible position with the Engineer Corps of the United States Army. On August 8, 1942, she was married to John Reynolds, a contractor, and now maintains her home with him in Seattle.

In December, 1942, the defendant made application to the court to modify the decree "by providing that defendant may have custody in whole or part of the minor child of the parties and the right to see and visit her at reasonable times if complete custody be not awarded defendant." After a hearing in February, 1943, before the Hon. Charles H. Combs, circuit judge for the 14th Judicial District, at which oral testimony was taken, the court, on April 12, 1943, entered an order denying the defendant's motion for change of custody, but providing that she might visit the child at such times and places as the parties might agree upon, and, if they could not agree, that the court would fix the times and conditions of such visits. They were not able to agree, and the court accordingly on May 4, 1943, entered an order "that upon 7 days written notice to plaintiff and for a period of not more than 7 consecutive days, defendant will be entitled to visit with her daughter, Jo Ann, and to have the said Jo Ann with her away from home of plaintiff and away from plaintiff and his representatives, between the hours of 10:00 a.m. and 5:00 p.m. of each day". The order further provided that the defendant should get Jo Ann at the plaintiff's home and not remove her from the city of Klamath Falls or its immediate vicinity.

Thereafter the plaintiff and his present wife moved to Portland and established his home there, and the court on May 27, 1943, entered another order permitting the defendant to see Jo Ann in Portland on certain specified days and providing "that defendant shall get the said Jo Ann at said 5246 N.E. Hoyt Street, in Portland, Oregon, and shall return her to said address each day and shall not remove the said Jo Ann from within the limits of Multnomah County, Oregon."

On June 26, 1943, the defendant again filed a motion, supported by affidavit, seeking the custody of Jo Ann. On the same day the defendant caused contempt proceedings to be instituted against the plaintiff charging that he had violated the court's order of May 27, 1943, by refusing the right of visitation granted by the court. The plaintiff filed an affidavit in opposition to the motion for change of custody, and, in his return to the order to show cause in the contempt proceedings, admitted that he had disobeyed the order of the court, as charged, but alleged that he did so because "he is convinced that the safety and perhaps the life of the child would be imperiled by permitting the defendant to have her in her sole custody even for a moment. The plaintiff knows from his association with the defendant while she was his wife and from her conduct since the commencement of this suit that she is a neurasthenic and a mentally deranged person, a paranoiac with homicidal tendencies."

On August 4, 1943, a hearing of both matters was had before Judge Combs. The plaintiff did not appear in person or by counsel. Neither was Jo Ann present, although the plaintiff had been personally served with an order requiring him to produce her at the hearing. The testimony of a number of witnesses was heard, including three physicians and surgeons, and the court having taken the case under advisement, on August 25, 1943, adjudged the plaintiff in contempt of court and imposed a fine of $50.00, and entered an order awarding the custody of the child to the mother, with the provision that the plaintiff "may have the temporary custody and care of said minor child for a period to be during the summer school vacation, said Phillips to obtain said child at the home of defendant and to return said child to defendant's home at the end of said period."

At this last hearing it was shown that on July 20, 1943, the defendant was served with a citation issued out of the Circuit Court of the State of Oregon for Multnomah County, Department of Probate, in a proceeding brought by the plaintiff and his wife, Zona Kelly Phillips, for the adoption of the child, Jo Ann, by the said Zona Kelly Phillips.

This appeal is taken from the order of August 25, 1943, awarding the custody of Jo Ann to the defendant.

LUSK, J.

Careful consideration of the entire voluminous record leads us to the conclusion that the order appealed from should be affirmed. No one, of course, can be absolutely certain of the rectitude of a judicial decision which is intended to secure, as nearly as may be, the future happiness and welfare of a little girl. A court can only use its reasoned judgment in choosing between what at...