Shrout v. Shrout

• Decision Date: 09 November 1960
• Citation: 224 Or. 521,356 P.2d 935
• Parties: Jean SHROUT, Appellant, v. Clarence W. SHROUT, Respondent.
• Court: Oregon Supreme Court

Page 935

356 P.2d 935

224 Or. 521

Jean SHROUT, Appellant, v. Clarence W. SHROUT, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 16, 1960.

Decided Nov. 9, 1960.

Robert M. Stults, Roseburg, argued the cause for appellant. With him on the brief was William H. Jones, Roseburg.

Gordon G. Carlson, Roseburg, argued the cause for respondent. On the brief were Yates, Murphy & Carlson, Roseburg.

Before McALLISTER, C. J., and SLOAN, O'CONNELL, GOODWIN and HOWELL, JJ.

McALLISTER, Chief Justice.

This is a suit for divorce brought by the wife, Jean Shrout, against her husband, Clarence W. Shrout, in which the defendant filed a cross-complaint also praying for a divorce. Both parties sought custody of the two minor children, Donna Marie and Charles Harold. The complaint filed on February 24, 1959, alleged that Donna was then seven years of age and Charles was then six years old.

The decree of the trial court granted defendant a divorce, custody of both children and adjusted the property rights of the parties. The plaintiff has appealed only from that part of the decree which awarded custody of the children to her husband.

The trial judge placed the children in custody of their father because of misconduct of the wife involving other men. In about 1956, the plaintiff carried on an adulterous affair with another man for a period of several months. This affair was condoned by the husband but apparently had a lasting effect on the marriage and is relevant in appraising the fitness of the plaintiff to have custody of her children. Norcross v. Norcross, 176 Or. 1, 155 P.2d 562.

A similar affair with another man began not later than February, 1959 and continued until about July, 1959. During that period this case was pending and the parties were separated but both remained in Roseburg. The children were in custody of the plaintiff. The other man involved also lived in Roseburg, was married and had four children of his own.

The affair was carried on openly, the plaintiff going with her friend to a bowling alley, the movies, a rodeo and swimming at a public beach. Plaintiff spent some time in the man's apartment and he visited her at her mother's home. The children were not isolated from the affair but exposed to it. They were taken along when plaintiff and her friend went on picnics, to the movies and other places. On one occasion Donna, at her mother's request, brought beer from the refrigerator to the couple while they were lying on the bed in an upstairs bedroom of her mother's home. The boy Charles was also present on this occasion.

It is a universal rule, frequently stated by this court, that in providing for the custody of children, the controlling consideration is the welfare of the children--all other rules are secondary and of value only as they aid the court in deciding what is best for the children. Cases in which this principle has been stated include the following: Lambert v. Lambert, 16 Or. 485, 19 P. 459; McKissick v. McKissick, 93 Or. 644, 653, 174 P. 721, 184 P. 272; Merges v. Merges, 94 Or. 246, 252, 186 P. 36; Johnson v. Johnson, 102 Or. 407, 413, 202 P. 722; Rasmussen v. Rasmussen, 113 Or. 146, 148, 231 P. 964; Henry v. Henry, 156 Or. 679, 683, 69 P.2d 280; Van Doozer v. Van Doozer, 181 Or. 274, 277, 181 P.2d 126; Cripe-Dunn v. Cripe, 186 Or. 502, 504, 207 P.2d 1049; Gallagher v. Gallagher, 187 Or. 625, 632, 212 P.2d 746; Bogh v. Lumbattis, 203 Or. 298, 305, 280 P.2d 398; and Muhler v. Muhler, Or., 349 P.2d 661.

This court has also generally held that children of tender years, particularly girls, should be awarded to the custody of the mother unless she is morally unfit. Fisher v. Fisher, 133 Or. 318, 320, 289 P.2d 1062; Baier v. Baier, 172 Or. 83, 87, 139 P.2d 562; Leverich v. Leverich, 175 Or. 174, 177, 152 P.2d 303; Richardson v. Richardson, 182 Or. 141, 143, 186 P.2d 398; Ruch v. Ruch, 183 Or. 240, 244, 192 P.2d 272; Cripe-Dunn v. Cripe, supra; Goldson v. Goldson, 192 Or. 611, 621, 236 P.2d 314; and Wilson v. Wilson, 199 Or. 263, 260 P.2d 952. This salutary rule should be followed whenever possible. However, it is not controlling and should be applied only when its application will be in the best interests of the children.

The plaintiff relies heavily on a line of cases which emphasize motherhood as a factor in deciding questions of custody and tend to minimize the effect of the moral imperfections of the mother. These cases include Sakraida v. Sakraida, 192 Or. 217, 228, 217 P.2d 242, 233 P.2d 762, 764, in which the following rule was stated:

'* * * Our decisions recognize the general rule under which, in awarding custody of young children, preference is given to the mother, unless she is grossly immoral or has abused or grossly neglected the children.'

Closely following the Sakraida case came Goldson v. Goldson, supra, in which the following statement was made [192 Or. 611, 236 P.2d 318]:

'The moral unfitness of a mother sufficient to deprive her of custody must be such as to have a direct bearing upon the welfare of the child. It is not for every act of indiscretion or immorality that she will be denied custody. The test is whether her conduct is so depraved, immoral, and wicked that to permit her child to remain in her custody would be injurious to its best interests.' (Italics supplied.)

The above statement was quoted or referred to in a number of later cases including the following: Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320; Pick v. Pick, 197 Or. 74, 79, 251 P.2d 472; Gibson v. Gibson, 196 Or. 198, 216, 247 P.2d 757; Laurance v. Laurance, 198 Or. 630, 258 P.2d 784; Wilson v. Wilson, supra; and Wengert v. Wengert, 208 Or. 290, 293, 301 P.2d 190.

The court did not explain precisely what it meant when it said that the moral unfitness of the mother, to be a relevant factor, must have a direct bearing upon the welfare of the child. We doubt that the court meant that the child must be aware of and understand the mother's immorality, but we think the statement is subject to that interpretation. If so, it is obviously unsound. In any event, we think the rule stated in Goldson distorts the relationship of motherhood as a factor in deciding what is best for the children and should be, and is, overruled.

We affirm the rule that not every act of indiscretion or immorality should deprive a mother of the custody of her children. In all cases motherhood is a factor to be given great weight in deciding questions of child custody. We only want to make it clear that any moral transgressions of the mother must be considered, together with other relevant factors, in determining what is best for the children. We think that arbitrary rules that...