Sakraida v. Sakraida

• Decision Date: 06 July 1951
• Citation: 233 P.2d 762,192 Or. 217
• Parties: SAKRAIDA v. SAKRAIDA.
• Court: Oregon Supreme Court

Page 762

233 P.2d 762

192 Or. 217

SAKRAIDA v. SAKRAIDA.

Supreme Court of Oregon.

Argued June 19, 1951.

Decided July 6, 1951.

L. S. James and Donald Coulter, Grants Pass, argued the cause for appellant. On the brief were Coulter, James & Coulter, of Grants Pass.

E. L. Mikesell, Grants Pass, argued the cause for respondent. On the brief were Miller & Mikesell, of Grants Pass.

Before BRAND, C. J., and HAY, LUSK, LATOURETTE and WARNER, JJ.

HAY, Justice.

Appeal from an order modifying a decree of divorce by changing custody of the minor child of the parties.

On September 16, 1948, plaintiff, Jean Sakraida, commenced this suit. Her complaint charged the defendant, Edward Sakraida, her husband, with cruel and inhuman treatment, and prayed for a decree of divorce and for custody of the child of the parties, Jonny Sakraida, a boy, at that time aged two years. On September 28, 1948, Edward's default was entered and a hearing was had upon the complaint. At the conclusion of the hearing, the chancellor stated that he was perfectly willing to grant Jean a decree and to give her custody of the child, but that, for reasons which he stated, he would be obliged to leave open the matter of the child's support in order to give Edward an opportunity to be heard thereon. On February 8, 1949, Edward moved for an order vacating the order of default and giving him leave to answer. This was granted, and Edward thereupon filed his answer and cross-complaint, generally denying the allegations of the complaint, and praying for a decree of divorce in his favor on the ground of cruel and inhuman treatment, and for custody of the child.

Issue was joined upon the new matter. The case was heard on March 29 and 30, 1949, and on April 28, 1949, the court made findings of fact and conclusions of law in favor of Edward, and entered a decree of divorce in his favor, but awarding custody of the child to Jean.

On November 23, 1949, Edward filed a motion for an order modifying the decree so as to give him custody of the child. The motion was supported by his affidavit, in which he alleged that, since the date of the decree, 'the Plaintiff herein has entered into and is now living in open, notorious, illicit cohabitation with one Lou Varner, that under Plaintiff's custody, my said son, Jonny Sakraida, is being exposed and subjected to and associating with such environment that I have repeatedly been denied the right to visit with or have my said son, between the hours of 9:30 A.M. and 5:30 P.M. on Sundays; all in contemptuous disregard of the law and decree of the court in this case made, and to the detriment and corruption of the welfare and morals of my said son; * * *.'

An order to show cause issued in due course, and, on December 14, 1949, a hearing was had upon the motion. Thereafter, the court made findings of fact to the effect that Edward is a fit and proper person to have custody of the child, and that Jean 'has been guilty of improper conduct as charged in the Affidavit and in contracting an adulterous marriage during her marriage relationship with the Defendant, * * * said second marriage in any event, having been attempted prior to the expiration of six months from the date of the entry of a decree of divorce hereinbefore made; * * *.'

Appropriate conclusions of law followed, and, on January 16, 1950, the court made its order modifying the decree. Plaintiff appeals.

It is hornbook law that upon a motion of this sort the court will not go behind the decree and retry the divorce case. Edward recognized this by basing his motion upon matters alleged to have taken place subsequent to the date of the decree, although the evidence of both parties at the hearing took a wider range. The movant is confined to the matters alleged in his motion and supporting affidavit. As to these he has the burden of proof. Leverich v. Leverich, 175 Or. 174, 180, 152 P.2d 303. Jean was entitled to notice, by appropriate allegations in the motion and supporting affidavit, of all the grounds upon which Edward intended to rely. Hurner v. Hurner, 179 Or. 349, 357, 170 P.2d 720.

It appears that about a week following the divorce hearing, and while the court still had the case under advisement, Jean went to Reno, Nevada, with one Lewis Varner, obtained a marriage license and went through a marriage ceremony with him, after which they returned to Oregon and cohabited as man and wife.

Jean, or a witness in her own behalf, strenuously contended on the hearing of the motion that it was her understanding that the decision of the court at the conclusion of the ex parte hearing on September 28, 1948, was that the divorce was granted, that she was awarded custody of the child, and that only the property settlement was to be left open. She testified that she was so informed by her attorney, and in addition she offered in evidence a news item in a Grants Pass newspaper of September 29, 1948, upon which she said she relied to some extent, as confirming her understanding of what her attorney had told her, which stated that an uncontested divorce decree had been granted to Jean from Edward Sakraida. She said further that at the time when she went through the marriage ceremony with Varner more than six months had elapsed since the date on which she erroneously supposed the court had given her a decree of divorce; that she did...