In re the Marriage of Deffenbaugh

596 P.2d 966, 286 Or. 759, 1979 Ore. LEXIS 993
CourtOregon Supreme Court
DecidedJune 26, 1979
DocketNo. 49557, CA 10300, SC 25804
StatusPublished
Cited by7 cases

This text of 596 P.2d 966 (In re the Marriage of Deffenbaugh) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Deffenbaugh, 596 P.2d 966, 286 Or. 759, 1979 Ore. LEXIS 993 (Or. 1979).

Opinion

HOLMAN, J.

This case involves a dispute between a former husband and wife over the custody of their two small children following the dissolution of the parents’ marriage. It comes before us on the wife’s petition for review of the Court of Appeals’ decision, 35 Or App 683, 582 P2d 470 (1978). In order to understand fully the issues presented by this case it is necessary to examine in detail its involved procedural background.

Wife filed a petition for dissolution of marriage April 1, 1977, and requested custody of the parties’ two minor children, a girl, bom June 6, 1974, and a boy, bom May 19, 1976. In his response, husband also sought custody. On May 13, 1977, after a show cause hearing, the court awarded temporary custody of the children to the husband pending trial on the petition. Trial took place on September 23, 1977.

Testimony disclosed that wife had left the family home prior to filing the petition and that she sometime later began living with a man with whom she had become involved prior to her departure. After the time of trial she was working parttime at a clothing store in exchange for clothing and was not available to care for the children during those hours. If awarded their custody, she would have had to hire a baby-sitter to care for them while she was away. She expressed an intent to marry the man she was living with as soon as it became possible as well as a willingness afterward to leave her job and to devote herself to caring for the children full time. She had taken good care of the children in the past and appeared to have had a good relationship with them.

Husband had a full-time job in a sawmill but faced a layoff at the time of trial. He was living with the children in a trailer, formerly occupied by the entire family, which was located on property owned by his parents. His mother and father lived nearby in a [762]*762rather dilapidated, older home which they had constructed. While husband was at work, primary responsibility for the children’s care fell on husband’s mother, who was approximately 70 years old and suffered from arthritis and a leg ulcer. Poor health had the potential of interfering with her ability to care for the children. However good her intentions, she appears to have been something less than a model housekeeper.

Husband’s past conduct, like wife’s, suggested certain character deficiencies. There was testimony that he had verbally abused his aging mother and had physically abused his wife. He, like his wife, had been unfaithful during marriage. He appears to have thrown regular parties at the trailer where alcohol was served to minors.

With this evidence in mind, the trial court said, in part, concerning the child custody issue:

"What I am getting at is that his plan, right now, for the present, is the better, but if she does get married and does stay home and take care of the children like she intends to do, but can’t do for another 60 days at least, then her plan would be better. And all I know how to do to handle that situation is take the matter of custody under advisement for the next 60 days, or thereabouts and see what develops, but in the meantime, I think that he should continue with the custody.
"If she gets married and quits work and stays at home with the children, I think she ought to have them, and hers would be a better plan.
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"So, I will ask counsel to report to the Court and I hope it wouldn’t be necessary for you to come back, report to the Court by December 15th and I will hold the matter of custody, and, of course, in that regard it would depend on child support, open until December 15th to get a report on what the situation is at that time.
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[763]*763"THE COURT: Well, the Order would be then, there should be a dissolution as of now, the effective date would be November the 23rd.[1] I will give him presently the custody of these children subject to her right of reasonable visitation, but I want it clearly understood that the Court would consider changing the custody if she is remarried and she wouldn’t have to show any other change of circumstances.
"MR. MC FARLAN: Well, would she have to file a motion for a change?
"THE COURT: No. I said I would take it under advisement and keep that part of it open until then and then I want a report and you can reply to the report. I think that would be the best way to do it. I will make a final ruling on December the 15th on the matter of custody.”

Wife’s counsel was instructed by the court to draft a decree, but he experienced difficulty with the wording. Husband’s counsel was then instructed by the court to draft a decree, which he did. It said nothing about the award of permanent custody being postponed until wife had had an opportunity to remarry but instead awarded custody to father. No one noticed the error at the time.

On December 13 wife filed a motion to modify the decree and to award custody of the children to her. In an accompanying affidavit she stated that she had married the man she had been living with. The court issued an order to husband, asking him to show cause why the decree should not be modified. The court originally set December 21, 1977, as the date of the hearing on the show cause order but later rescheduled it for January 6, 1978.

At the January 6,1978, hearing on wife’s motion to modify the decree, the parties and the court engaged in a lengthy discussion regarding, among other issues, the procedural status of the case and the court’s authority to change custody. The court ultimately asked the wife to file a motion requesting modification [764]*764of the decree to reflect the original terms of its oral decision, which she did. The court did not hold an evidentiary hearing on this motion. It then signed two orders: the first corrected the original decree by deleting the language awarding custody to father and by inserting the following paragraph:

"The issue of the award of custody of * * * [the] minor children of the parties hereto, hereby is taken under advisement until 15 December 1977, to determine whether or not petitioner [wife] shall remarry during such interim period.”

The second order recited that wife had remarried and that custody of the two children was awarded to her. The court signed both orders without first submitting them to husband’s counsel.

Husband appealed to the Court of Appeals. He there contended that the trial court erred by failing to hold a hearing to determine if there had been a substantial change of circumstances after the award of custody to husband to justify a change of custody. He asked the Court of Appeals to reverse the orders modifying the decree and awarding custody of the children to wife because they had the effect of modifying an award of custody without the required showing of changed circumstances. The Court of Appeals agreed and reversed the order awarding custody of the children to wife. It remanded the case to the trial court for a hearing on the wife’s motion to modify the decree under the changed circumstances standard.

In this court, wife challenges the Court of Appeals’ decision on a variety of grounds.

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Cite This Page — Counsel Stack

Bluebook (online)
596 P.2d 966, 286 Or. 759, 1979 Ore. LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-deffenbaugh-or-1979.