Richardson v. Richardson

• Decision Date: 12 November 1947
• Parties: RICHARDSON <I>v.</I> RICHARDSON
• Court: Oregon Supreme Court

182 Or. 141

186 P.2d 398

RICHARDSON

v. RICHARDSON

Supreme Court of Oregon.

Argued October 16, 1947.

Affirmed November 12, 1947.

Divorce — Custody of child

1. Custody of child of tender years should be awarded to divorced mother if she is qualified.

Divorce — Mother — Preference — Custody

2. If mother is not party at fault, she should be given preference as respects custody of minor child in divorce action. O.C.L.A. § 9-914.

Divorce — Mother — Not at fault

3. In divorce action, evidence justified award of custody of minor child of tender years to the wife on the ground that she was a fit and suitable person for that custody, where she was not the party at fault and her moral character or fitness was not attacked. O.C.L.A. § 9-914.

                  See 17 Am.Jur. 511
                  27 C.J.S., Divorce, § 309
                

In Banc.

Appeal from Circuit Court, Multnomah County.

CHARLES W. REDDING, Judge.

George Mowry, of Portland (with John Mowry, of Portland, on the brief), for appellant.

John W. Brugman, of Portland (with Joseph G. Berkshire, of Portland, on the brief), for respondent.

Suit by Margaret LuCella Richardson against J.H. Moody Richardson for a divorce, custody of parties' minor child and support therefor, and for certain property. Defendant counterclaimed for divorce and custody of child. From an adverse decree, defendant appeals insofar as it relates to custody of child and support.

AFFIRMED.

WINSLOW, J., (Pro Tempore).

The parties hereto were intermarried February 28, 1942. To this marriage there was born one child, Jay Edgar Richardson, about four years of age at the time of the trial in the lower court. Almost immediately after the marriage, appellant and respondent moved into and made their home with appellant's grandmother. Very shortly after the birth of the child, appellant was inducted into the United States army. About this time respondent went back to work where she had formerly been employed. Thus the child was left largely in the care of his great grandmother. This condition continued to exist, except for a short period of time while appellant was stationed at Camp Adair, until respondent, the child and the grandmother moved to appellant's sister's home which was occupied not only by the sister but by appellant's mother, Mrs. Brown. While at Camp Adair, appellant obtained living quarters, and the family consisting of appellant, respondent and the child lived at Corvallis. They continued to live there until the spring of 1944. At that time appellant was transferred, and respondent accompanied him as far as San Luis Obispo, California, after which she returned to the home of appellant's sister and continued to live there until appellant returned from overseas in June 1946. After her return from California, respondent again returned to her position with Montgomery Ward & Company. Appellant's mother and sister being otherwise engaged, again the child was left largely in the care of his great grandmother.

While overseas, appellant lost his heart to a French girl; and, almost immediately upon his return, domestic difficulties ensued culminating in this suit, brought by respondent against appellant for divorce, custody of the child and support therefor, and for certain property. Appellant, counterclaiming, likewise sought a divorce and the custody of the child. Upon the conclusion of the trial, the court entered a decree granting respondent a divorce, the custody of the child, $50 a month for the support thereof, and made certain property adjustments.

Appellant has appealed raising but a single issue herein, namely, as to whether or not the court erred in granting the custody of the child to respondent and, of course, adding that, if this court sees fit to grant custody to him, he be relieved of the payment of support money. The transcript of evidence is over four hundred pages. No good purpose would be served by setting out herein even a resume thereof. We shall, therefore, make very brief reference to certain portions of the evidence bearing upon the question presented.

1. The issue as to the custody of the child is somewhat simplified by the following factors: The child is of tender years and the mother, being otherwise qualified, should have custody. Van Doozer v. Van Doozer, 181 Or. 274, 181 P. (2d) 126; Phillips v. Phillips, 175 Or. 14, 26, 149 P. (2d) 967; Sachs v. Sachs, 145 Or. 23, 25 P. (2d) 159, 26 P. (2d) 780; Pittman v. Pittman, 3 Or. 553.

2. Again, the mother is not the party at fault and for that additional reason, unless otherwise manifestly improper, she should be given preference. O.C.L.A. § 9-914; Van Doozer v. Van Doozer, supra; Norcross v. Norcross, 176 Or. 1, 155 P. (2d) 562; Henry v. Henry, 156 Or. 679, 69 P. (2d) 280; Lambert v. Lambert, 16 Or. 485, 19 P. 459.

3. Moreover, appellant makes this concession in his brief: "The appellant has never questioned, and does not now question, in any respect, the moral character or moral fitness of the respondent * *." In fact, appellant bases his entire contention upon the proposition that respondent is mentally and physically incapable of properly caring for the child. In support of this contention, appellant asserts that respondent is suffering from a "maniac-like hyperactivity" and that this condition is "recurrent." Our attention is called to four different episodes occurring, as is contended by appellant, at intervals of about two years. A careful consideration of the evidence offered by appellant in support of his contention convinces us that the incidents have been greatly exaggerated. That respondent has had some nervous upsets is admitted. Much could be said about the conditions and circumstances under which Dr. Burkes made his examination and diagnosis. Even that we deem unnecessary.

What Dr. Burkes calls a "maniac-like hyperactivity," Dr. Middleton and Dr. Dixon call an "acute anxiety state," a condition which was very prevalent among the wives of...