Sachs v. Sachs

• Decision Date: 19 September 1933
• Citation: 25 P.2d 159,145 Or. 23
• Parties: SACHS v. SACHS. [*]
• Court: Oregon Supreme Court

25 P.2d 159

145 Or. 23

SACHS v. SACHS. ^[*]

Supreme Court of Oregon

September 19, 1933

Department 2.

Appeal from Circuit Court, Multnomah County; Clarence H. Gilbert Judge.

Suit by Valborg C. Sachs against Harold S. Sachs. From an order modifying a divorce decree as to the custody of the parties' minor child, plaintiff appeals.

Order set aside, and restoration of original decree ordered.

Austin F. Flegel, Jr., of Portland (Reynolds, Flegel & Smith and F. P. Keenan, all of Portland, on the brief), for appellant.

Clarence J. Young, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for respondent.

CAMPBELL Justice.

On March 23, 1931, plaintiff filed in the circuit court for Multnomah county a complaint for divorce, in which after alleging the marriage, the issue thereof, a boy then one year old, charged defendant with cruel and inhuman treatment rendering her life burdensome and unbearable. This treatment consisted of a roving disposition on the part of defendant and a refusal on his part to settle down and make a home. She set out in detail the various places visited in Europe Canada, and this country. The substance of her allegations is that he kept her constantly on the move. She also charged him with gross and habitual drunkenness, a habit acquired since marriage.

She asked for a decree of divorce; that she be awarded the permanent care and custody of the minor child and $100 per month for his maintenance.

On March 27, 1931, defendant appeared in said cause by his counsel, A. I. Bernstein, and consented that said suit be tried as a default proceeding without further notice to defendant of the time and place of said trial. Thereafter the cause came on for trial. Plaintiff introduced evidence tending to support the allegations of the complaint. On the trial there was introduced in evidence a written agreement which was made and entered into between plaintiff and defendant on March 21, 1931, settling their property rights and providing for the care and custody of the child. This agreement, after stating the disposal of the property rights proceeds:

"Nothing herein contained shall be deemed nor construed as a waiver on the part of the party of the second part of her claim to support and maintenance by the party of the first part, and for the support and maintenance of the minor child of the parties hereto, and to that end the parties agree as follows:

"The party of the first part shall pay to said party of the second part the sum of One Hundred ($100.00) Dollars on the first day of each and every month commencing with the month of April 1931, for the support and maintenance of Lawrence Harold Sachs, the minor child of the parties hereto, so long as said minor child shall be in the custody of the party of the second part, and said payments shall continue during the minority of said child, and in case any decree of divorce is entered between the parties hereto said provision for the support of said child shall be embodied therein.

"It is agreed between the parties hereto that the said party of the second part is in all respects a fit and proper person to have the care and custody of said minor child, and in any proceeding involving the custody of said minor child, provision shall be made whereby the care and custody of said minor child be awarded to the party of the second part, with permission granted to said party of the first part to have said child once each year during the long summer vacation period after the child shall reach the age of six (6) years, the expense of such visits, together with the expense of a suitable person to accompany said child from the place where he may be to the place of residence of the party of the first part and to return said child to the custody of the party of the second part, to be borne by the party of the first part, said custodian to be selected by the party of the second part; in addition thereto said party of the first part shall have the right to visit said minor child at all reasonable times at whatever place said child may be.

"The party of the first part further agrees to pay the party of the second part by way of maintenance and support and in lieu of all other claims, rights or demands by the party of the second part against the party of the first part the sum of Twenty-three Hundred Seventy-five Dollars ($2375.00) in cash, payment thereof to be made forthwith upon the execution of this agreement, and to further pay the necessary expense and freight charges for the shipping of certain household effects, property of the party of the second part as hereinbefore provided, and now in storage in the City of San Francisco, California, from the storage warehouse where the same are now located to Stockholm, in the Kingdom of Sweden, and said party of the first part does further agree to pay the reasonable living expense of the party of the second part at the Sovereign Hotel in the City of Portland, Oregon, to and including the 25th day of March, 1931, being the date on which said party of the second part contemplates leaving Portland, Oregon, for her family's home in the Kingdom of Sweden."

The property settlement in this agreement was accepted by the plaintiff in full settlement of any property rights that she might have against the defendant in any suit that might thereafter be instituted for divorce or separate maintenance or attorney's fees or costs or any sums whatsoever. In arriving at this agreement, plaintiff was represented by her attorney and defendant was represented by his attorney, a reputable lawyer of San Francisco, Cal.

After hearing the testimony, the court, on March 27, 1931, entered a decree in conformity with the foregoing agreement of the parties which so far as being pertinent to the matters under consideration at this time, is as follows:

"It is further considered, ordered, adjudged and decreed that plaintiff be, and she hereby is granted the sole and exclusive care and custody of Lawrence Harold Sachs, minor child of plaintiff and defendant, subject to the right of defendant to visit said child at the residence of plaintiff at all reasonable times and occasions and subject further to the right of defendant to have said minor child visit defendant during summer school vacation periods after said minor child shall reach the age of six years, provided that in the event defendant shall elect to have said minor child...