Wilson v. Wilson

• Decision Date: 10 September 1953
• Citation: 260 P.2d 952,199 Or. 263
• Parties: WILSON v. WILSON.
• Court: Oregon Supreme Court

Page 952

260 P.2d 952

199 Or. 263

WILSON v. WILSON.

Supreme Court of Oregon, En Banc.

Submitted Aug. 21, 1953.

Decided Sept. 10, 1953.

Morley and Thomas, Lebanon, for appellant.

No attorney of record for respondent.

TOOZE, Justice.

This is an appeal from an order denying defendant's motion for modification of a decree respecting the custody of a minor child.

On September 7, 1951, Louis Eugene Wilson, as plaintiff, commenced suit for divorce in the circuit court for Columbia county against Vivian Irene Wilson, as defendant, upon the ground of cruel and inhuman treatment. David Garrett Wilson, born April 4, 1948, is the lawful issue of the marriage between plaintiff and defendant.

Defendant appeared in the suit by filing an answer in which she denied the misconduct alleged against her. Prior to trial and decree, the parties entered into a written stipulation respecting alleged property rights and also concerning the custody of the minor child. In regard to the matter of custody, the stipulation provided as follows:

'Whereas, the parties have heretofore stipulated and agreed that the custody of said minor child would be determined by Gehard B. Haugen, and the said psychiatrist having interviewed the parties and the child on two different occasions, and having made his determination that the custody of the child would best go to first party [plaintiff]; now, therefore,

'It is agreed as follows:

'* * *

'(3) That the custody of David Garrett Wilson be awarded by the Court to first party with the right of reasonable and seasonable visitation on the part of second party.'

On September 14, 1951, a decree was entered in said suit in favor of plaintiff and provided in part:

'(5) That the custody of David Garrett Wilson be and the same is hereby awarded to plaintiff with the right of reasonable and seasonable visitation to defendant.'

The complaint did not charge, nor was any finding made by the court, that the mother of the child, the defendant in said suit, was unfit to have the custody of her child nor that its best interests demanded that custody be awarded to plaintiff. In passing, we also note that the complaint contains no allegation which, even if true, would be sufficient to deprive the mother of the right to custody of her child. This court has repeatedly said that a child of tender years should be awarded to the custody of the mother, notwithstanding the fact that she is the losing party, unless she is morally unfit. As to what constitutes such moral unfitness, we stated in Goldson v. Goldson, 192 Or. 611, 621, 236 P.2d 314, 318, as follows:

'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 her 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. * * *' From the record before us, it is manifest that the court simply adopted the agreement of the parties as to the custody of the child. In effect, the court accepted the determination of the psychiatrist without further inquiry or finding. What is or may be for the best interests and welfare of a minor child is a matter exclusively for judicial determination in each case where the question arises, and such conclusion should always be based upon competent evidence respecting all matters material to that issue. The court should never abdicate its functions. Before the custody of any child of tender years is taken from a mother, the evidence should clearly disclose, and the court should specifically find, unfitness on her part to have such custody and that the best interests and welfare of the child demand placing its custody elsewhere.

However, on this appeal we are not concerned with the original decree. We treat it as final and conclusive as to all matters determined up to the date thereof, inasmuch as no appeal was taken therefrom. A change in custody of the minor child can now be had only if there has been a change in conditions and circumstances following the entry of the decree that affects the welfare of this little boy. The child's best interests and welfare are of primary importance.

On November 17, 1951, defendant filed a motion, supported by her affidavit, for a modification of the decree respecting the custody of the child, asking that such custody be awarded to her. As of January 17, 1952, an order was entered by the court denying defendant's motion but at the same time modifying the decree by adding thereto the following provisions:

'(1) That the defendant be and she is hereby granted the right to see said child on two occasions each month, and to have said child with her during the daytime only, but shall return the child to the plaintiff by evening of each day during which she has the child.

'(2) That neither of the parties shall take said child without the State of Oregon without consent of the Court first had and obtained.

'(3) That defendant give to plaintiff at least 24 hours notice of her desire to have the child for visitation.'

After the entry of said modification order, the plaintiff, without leave of the court, took said child to the state of California, thereby depriving defendant of the right of visitation. On or about June 16, 1952, defendant filed another motion, supported by her affidavit, for modification of the decree respecting the custody of the child, again asking that custody be awarded to her. While this motion was pending, the parties entered into a written stipulation (plaintiff execution the same in Riverside county, California, and defendant executing the same in Linn county, Oregon), the significant portion of which reads as follows:

'It is hereby stipulated and agreed as between the parties that the decree of divorce entered in the above entitled matter on the 14th day of September, 1951, and modified by order of the above entitled Court under date of January 17, 1952, may be further modified by providing therein that the care, custody and control of David Garrett Wilson may be with the defendant for a period of six months, beginning July 15, 1952 and for a period of three consecutive months, annually thereafter, to-wit, commencing on the 15th day of June of each calendar year, beginning with June of 1953, and in no event shall period commence before or end after said child's annual summer vacation from school, and said care, custody and control of said child shall remain in the plaintiff at all other times.'

Under date of July 28, 1952, an order was entered by the court modifying the decree as provided in the foregoing stipulation. The order refers to the stipulation.

On February 6, 1953, the instant proceeding was instituted by defendant filing a motion, supported by affidavit, asking for a modification of the decree so as to vest...