Wengert v. Wengert
| Decision Date | 06 September 1956 |
| Citation | 208 Or. 290,301 P.2d 190 |
| Parties | Della C. WENGERT, Appellant, v. Herman Robert WENGERT, Respondent. |
| Court | Oregon Supreme Court |
Joe F. Walker, Rainier, argued the cause and filed a brief for appellant.
Glen R. Metsker, St. Helens, argued the cause and filed a brief for respodent.
This is a suit for divorce brought by Della C. Wengert, as plaintiff, against Herman Robert Wengert, as defendant. Plaintiff sought a decree awarding her custody of the only child of the marriage, a daughter now four and one-half years old, awarding her $2,500 alimony, and dividing the jointly held property. The trial court granted defendant a divorce on his cross complaint, dismissing plaintiff's complaint, awarded defendant custody of the child, and divided the jointly held property in a manner less favorable to plaintiff than that sought by her. Plaintiff appeals from that part of the decree respecting custody of the child and disposition of the property.
Upon a review of the evidence, it is our opinion that the trial court did not err in its disposition of the property involved. ORS 107.100(4) provides that the court, upon dissolving a marriage, may make such disposition of all the property of the parties 'as may be just and proper in all the circumstances'. Plaintiff has failed to show how the trial court's disposition of all the property of the parties was unjust or improper. One of the circumstances which should be, and no doubt was, taken into account by the trial court is the economic situation of the parties. Plaintiff has inherited, with her brother, a farm owned by her deceased parents, for which, according to her testimony, there had been made an offer of $14,000. There are no encumbrances. In contrast, the property awarded to defendant is largely debt-ridden. Whatever value may remain can hardly be attributed to plaintiff's efforts. Plaintiff relies upon Siebert v. Siebert, 184 Or. 496, 199 P.2d 659 and Flanagan v. Flanagan, 188 Or. 126, 213 P.2d 801. Neither of these cases causes us to doubt the soundness of the disposition of property made by the trial court, as in both cases the economic circumstances of the parties were far different from those of the parties before us. Both the Siebert case and the Flanagan case support the proposition that the disposition of property upon the dissolution of a marriage must take into account all the circumstances. We are satisfied that this was done by the trial court. Plaintiff appears to be in far better financial condition than is defendant. She cannot complain because the court refused to burden defendant with more debt for her benefit. Moreover, as disclosed by the pleadings, plaintiff in her divorce complaint asks the court to award to the defendant the real property in which she presently seeks an interest and therefore is in no position to complain concerning the court's disposition of it.
However, in our opinion, the trial court erred in awarding custody of the daughter to defendant. The law of this state requires that for a child of tender years to be taken from the care of its mother there must be clear proof that the mother is morally unfit or otherwise incompetent to rear the child. Goldson v. Goldson, 192 Or. 611, 236 P.2d 314; Baier v. Baier, 172 Or. 83, ...
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Shrout v. Shrout
...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 f......
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Adoption of Smith, In re
...custody of a child of tender years to its mother even though the mother's misconduct caused the divorce. E. g., Wengert v. Wengert, 208 Or. 290, 301 P.2d 190 (1956); Goldson v. Goldson, 192 Or. 611, 236 P.2d 314 (1951); Ruch v. Ruch, 183 Or. 240, 192 P.2d 272 (1948). On more rare occasions,......