Wells v. Wells-Crawford

• Citation: 251 P. 263,120 Or. 557
• Parties: WELLS v. WELLS-CRAWFORD. [a1]
• Decision Date: 07 December 1926
• Court: Supreme Court of Oregon

251 P. 263

120 Or. 557

WELLS v. WELLS-CRAWFORD. ^[a1]

Supreme Court of Oregon, En Banc.

December 7, 1926

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Suit for divorce by R. P. Wells against Lucy M. Wells (Lucy M Wells-Crawford). Decree for plaintiff. From a decree modifying the original decree, defendant appeals. Decree modifying original decree reversed, and original decree restored as modified.

Plaintiff and defendant were married at Baltimore, Md., in 1911. Two children were born, the issue of the marriage. In 1924 the parties were divorced by a decree of the circuit court for Union county, Or. The decree provided as follows:

"That the exclusive care, control, custody, nurture, and education of the minor children of the parties, to wit Arthur Paul Wells, aged 8, born October 3, 1915, now in the custody of the plaintiff, and Mildred Wells, aged 5, born February 15, 1919, now in the custody of the defendant, be and the same hereby is awarded to the defendant, Lucy M Wells, subject to and with the right and privilege to the plaintiff to visit said minor children from time to time so as not to interfere with their regular care by the defendant, or with their school work, and subject further to the unlimited right of the defendant to take said children, or either of them, from without the jurisdiction of this court. That the plaintiff pay to the defendant, at her residence, on or before the 10th day of each and every month, for the care, nurture, and education of said children during their minority, the sum of $60 per month the said payments to commence with the month of June 1924."

On January 18, 1926, plaintiff filed a motion supported by an affidavit for a modification of the decree, so as to award the exclusive care and custody of the two minor children to plaintiff, R. P. Wells, the father, and relieving plaintiff of the payment of anything to defendant for the support of the minor children. Defendant answered the motion for a modification, and plaintiff filed a further affidavit replying thereto.

Upon a hearing of the motion, the circuit court made and entered findings of facts and conclusions of law and modified the former decree so that plaintiff, R. P. Wells, should have the exclusive care and custody and control of Arthur Paul Wells; that defendant, Lucy M. Wells-Crawford, have the exclusive care, custody, and control of Mildred Wells; that plaintiff be relieved from all past payments for the support of said minor, not already made; and that, from and after July 1, 1926, plaintiff pay to defendant, for the support of Mildred Wells, the sum of $30 per month in advance; that each party have the right to visit the child in the custody of the other party, at the home of such party, at all reasonable times. Defendant appeals.

F. S. Ivanhoe, of La Grande, for appellant.

E. R. Ringo, of La Grande (Ringo & Wright, of La Grande, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

Defendant refers to the fact that she is not charged either in the divorce proceeding, or in the proceedings to modify the decree, with any delinquency. It is admitted that she has been at all times a good mother and has taken proper care of her children. Since the divorce, each of the parties has remarried. Both now live in La Grande, Or. Defendant has married R. A. Crawford, a respectable and prosperous citizen of La Grande, who owns and provides defendant with a good home. Plaintiff married one Hazel Barnes, and is living in a rented house. Plaintiff and his present wife have one child.

Mr. Wells is employed by the Oregon, Washington Railroad & Navigation Company, and usually receives as wages $39.36 per week, and occasionally, when substituting for the foreman, he receives an additional sum of 40 cents per day. Plaintiff stated that he and his wife will give the two children proper care, and that it is for the best interests of the children that they be kept together. The affidavit of plaintiff contains the following:

"That, since the entry of decree herein, the defendant has placed the minor child, Arthur Paul Wells, in the care and control of Mrs. John Barwith, who is defendant's mother, and who resides in Baltimore, Md.; that plaintiff resides at La Grande, Or., and is necessarily deprived of the privilege of associating with and visiting with his said son, Arthur Paul Wells, and that, since the entry of said decree, said defendant has remarried and is now the wife of Richard A. Crawford, residing on Tenth street, in the city of La Grande; that the payment of the sum of $60 per month is burdensome to me, and I can support said children as well or better than they are now supported for half of said amount, if I am permitted to have their care and custody."

Defendant states that she is in all respects a proper person to have the care and custody of each of said minor children; that it is not for the best interest of said children, or either of them, to be awarded to plaintiff; that the said Mildred Wells is now living with this defendant, and cared for by her in a home provided by the husband of defendant, and with means loaned by said husband to this defendant for that purpose; that the other child, Arthur Paul Wells, is now living in Baltimore, Md., with the mother of defendant, where he is being properly cared for and educated with funds and means borrowed by defendant from her said husband; that long prior to the divorce decree, and ever since, plaintiff, as a mechanic in the shops of the Oregon Washington Railroad & Navigation Company, at La Grande, has received wages ranging from $250 to $400 per month, and with reasonable care could have saved sufficient money to purchase a home, but that, by reason of his extravagant and profligate habits, he is, or claims to be, always broke without funds, and unable to pay his debts; that since October, 1925, plaintiff has neglected and refused to pay defendant the sum decreed for the support of said minor children, although able to do so; that the whole of the sum is necessary for their proper support.

At the hearing of the divorce case, plaintiff stated in his testimony as follows: "I am willing for her to take the boy for this reason, I have no way to take care of the boy myself." He consented to the decree for the payment of $60 per month for the support of the children. Plaintiff also gave his assent to the mother taking the children to her people in Maryland. Appellant submits that there is shown no change of conditions affecting the minor children since the rendition of the original decree, which warrant a modification of the decree as to the care and custody of the minors.

Respondent, in addition to his general claim, argues that the court was not authorized under the statute to award the custody of the minor children to defendant in the original decree, as the decree of divorce was in favor of plaintiff.

Section 513, Or. L., so far as material here provides thus:

"Whenever a marriage shall be declared void or dissolved, the court shall have power to further decree as follows:

"1. For the future care and custody of the minor children of the marriage, as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault;

"2. For the recovery of the party in fault, and not allowed the care and custody of such children, such an amount of money, in gross or in installments, as may be just and proper for such party to contribute towards the nurture and education thereof."

Section 514, Or. L., reads as follows:

"At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the suit."

In Neil v. Neil, 112 Or. 63, 64, 228 P. 687, at page 688, we read the language of Mr. Justice Coshow, as follows:

"The court retains jurisdiction of a suit involving the custody of minors. In a sense a decree or order of court awarding the custody and maintenance of minors is never final. It is subject to change to suit the changing conditions and requirements of the minor and of the custodian. Section 514, Or. L., as amended by chapter 114, Laws of 1921; Jolliffe v. Joliffe, 107 Or. 33, 213 P. 415; Hertzen v. Hertzen, 104 Or. 423, 208 P. 580; Mack v. Mack, 91 Or. 514, 179 P. 557; Gibbons v. Gibbons, 75 Or. 500, 147 P. 530."

In Rasmussen v. Rasmussen, 113 Or. 146, 148, 231 P. 964, 965, this court said:

"The original decree adjudicated the custody of the minor child. That decree has become final so long as the conditions then existing remain unchanged. Merges v. Merges, 94 Or. 246, 253, 186 P. 36."

In Merges v. Merges, 94 Or. 246, at page 254, 186 P. 36, 39, the rule is stated by Mr. Justice Burnett thus:

"The order of February 3, 1913, therefore, granting the exclusive custody of the son to his father, the defendant, was final and conclusive, in the absence of an appeal therefrom, and can be changed or superseded only by a showing that for some reason the father is not competent to care for the child or that some condition has arisen rendering his further care and custody by the father inimical to the child's welfare.

"The burden is upon the party, the plaintiff here, seeking to overturn the arrangement made by the order of February 3, 1913, for she is the moving party."

In Brandt v. Brandt, 40 Or. 477, 67 P. 508, the allowance for alimony was treated as final, so far as the same relates to the then conditions of the parties, subject to revision as later...