Beelman v. Beelman

363 P.2d 561, 361 P.2d 663, 227 Or. 556, 1961 Ore. LEXIS 317

Opinions

PER CURIAM.

This is an appeal from an order which modified a divorce decree by transferring the custody of a four-year-old girl from the mother to the father.

Through no fault of the appellant mother’s present counsel, the trial court record is incomplete. After two days of testimony, the case was continued for several days to afford the parties an opportunity to work out the problems of visitation which had brought them into court. We have a complete transcript of the proceedings to this point.

When the parties reappeared in the trial court, the court reporter was not present. The court apparently heard the parties and their then counsel. Present counsel do not now agree on all the details. We have no record of this hearing. There was, under the present state of the record, a private interview of one or more witnesses by the trial judge. Schuyler v. Haggart, 224 Or 530, 356 P2d 955.

There is no record of a stipulation to proceed without a reporter. There is likewise no record of an objection or an exception to the proceeding. There is no showing that the trial judge either possessed or considered knowledge learned outside the courtroom, a practice condemned in Laurance v. Laurance, 198 Or 630, 258 P2d 784. What the trial court learned inside the courtroom, we do not know.

Since there is no attempt to obtain reversal either because of the impossibility of producing a record, ORS 19.130(3), or because of any error in denying either party the right to preserve a record for ap peal, we must assume that the making of a record was waived. The only assignments of error challenge the decision of the trial court on the merits. Under OES 17.440, the only way this court can try the case anew is upon the complete record of the proceedings in the trial below. In the absence of a record, we have no basis upon which to reverse the trial court.

This court repeatedly has held that it can not try the question of child custody de novo upon a record which does not reveal what took place in the trial court. The waiver of the right to make a record below constitutes a waiver of the right to trial de novo in this court on the specific issue of custody. Schuyler v. Haggart, supra; Jaeger v. Jaeger, 224 Or 281, 356 P2d 93; Hartnell v. Hartnell, 208 Or 429, 301 P2d 1040; Rea v. Rea, 195 Or 252, 245 P2d 884, 35 ALR2d 612; cf. Omlie et ux v. Hunt, 211 Or 472, 316 P2d 528.

Affirmed. Neither party to recover costs.