Ruch v. Ruch

• Decision Date: 20 April 1948
• Citation: 183 Or. 240,192 P.2d 272
• Parties: RUCH <I>v.</I> RUCH
• Court: Oregon Supreme Court

183 Or. 240

192 P.2d 272

RUCHv.

RUCH

Supreme Court of Oregon.

Argued March 17, 1948.

Affirmed April 20, 1948.

Divorce — Agreement — Not to contest — Fraud

1. Secret agreement between husband and wife that if wife would not contest divorce, husband would obtain custody of child but would permit the wife to have physical custody of the child, was a fraud and therefore portion of divorce decree pertaining to custody of child was of no effect.

Divorce — Supreme court — Entire record — Child

2. Where part of divorce decree giving husband custody of child was of no effect because of fraud perpetrated on court, Supreme Court on appeal from order modifying the decree in order to give custody of the child to the wife, was entitled to consider the entire record to determine what was for the best welfare of the child.

Divorce — Mother — Custody — Child — Unfit

3. In a divorce suit, courts will not deprive a mother of custody of a child of tender age unless it is clearly shown that she is morally unfit to have the child.

Divorce — Modification — Custody — Child — Discretion

4. Modification of a divorce decree with respect to custody of a minor child is a matter resting largely in the trial court's sound discretion.

Divorce — Evidence — Trial court — Modify — Decree

5. Evidence sustained trial court's action in modifying divorce decree in order to give custody of minor child to mother who had shown true repentence for her previous indiscretion.

                  See note, 166 A.L.R. 675
                  17 Am. Jur. 513
                

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Robert R. Rankin, of Portland, argued the cause for appellant. With him on the brief was Edwin D. Hicks, of Portland.

Ernest J. Burrows, of Portland, argued the cause and filed a brief for respondent.

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

Suit for divorce by Leon Raymond Ruch against Irma Violet Ruch, wherein a default decree was rendered in favor of plaintiff, awarding him absolute care and custody of minor child. Thereafter defendant moved for modification of decree so as to award to her custody of the child. From an order modifying the decree, the plaintiff appeals.

AFFIRMED.

BELT, J.

Plaintiff appeals from an order modifying a decree of the circuit court with reference to the custody of a minor child. Plaintiff and the defendant were married at Portland, Oregon, on September 2, 1940, and there was born on October 31, 1942, as an issue of this marriage, a son named Leon. On August 8, 1946, plaintiff commenced a suit for divorce against his wife on the ground of cruel and inhuman treatment — she "cared for another man." Personal service was had on the defendant, but she defaulted and made no appearance. On August 31, 1946, the court entered a decree of divorce in favor of the plaintiff and awarded him the absolute care and custody of the minor child, giving to the mother the right of reasonable visitation.

On October 2, 1946, defendant moved for a modification of the decree so as to award her the care and custody of her son. The plaintiff opposed such motion and through affidavits charged, in effect, that the defendant was morally unfit to have the care and custody of her child. The hearing on this motion is reflected in a transcript of over 400 pages of evidence, together with numerous affidavits and counter affidavits. An order was entered modifying the decree by awarding the defendant the custody of the child and requiring that the plaintiff pay to her the sum of $40.00 per month for its support and maintenance.

This court feels a grave responsibility in determining the delicate and important question affecting the welfare of this little boy. Much thought and study has been given to the record. In some respects it is, indeed, a sordid tale of marital difficulties and experiences. It would reflect no credit on the parties involved to make a permanent record of an "act of indiscretion" which, no doubt, has caused this mother to suffer, as she says, a "thousand deaths." On the other hand, the plaintiff husband is no paragon of virtue, as is evidenced by his own affidavit. In fairness to this boy — who is the innocent victim of it all — we prefer to state our conclusions from the record rather than to indulge in a detailed recital of the evidence.

Plaintiff strongly urges that his fitness to have the custody of the child has been adjudicated and that there is no material evidence showing a subsequent change of conditions since the rendition of the decree affecting the welfare of the child. The defendant admits that she knew that the plaintiff in his complaint in the divorce proceedings was asking for the absolute custody of the child. Indeed, this matter was thoroughly explained to the defendant by counsel for the plaintiff. She asserts, however, that there was a secret understanding between the plaintiff and her that she was to have the actual physical custody of her child. She contends that had it not been for this agreement, she would...