Opinion
Submitted on brief December 16, 1925
Reversed January 26, 1926
From Clackamas: JAMES U. CAMPBELL, Judge.
For appellant there was a brief over the name of Mr. Louis E. Schmitt.
For respondent there was a brief over the name of Mr. Roscoe P. Hurst.
In Banc.
In April, 1920, the plaintiff obtained a decree of divorce from defendant and was awarded the custody of her daughter, June, who at that time was 12 years of age. The defendant made no appearance, but the decree provided that he should "have the right to visit said child at such times and places as may be found suitable and convenient for both parties." On July 31, 1924, the defendant moved to modify the decree so as to award custody of the minor child to him. The matter was submitted solely on affidavits, and the court modified the decree relative to custody of the child as follows:
"That the care and custody of said minor child, June Addison, be and the same hereby is awarded to the defendant, William Addison, from the 23rd day of September, 1924, to and including the first day of September, 1925; that the defendant shall pay all expenses incident to the transfer of said minor child, June Addison, from the state of New York to the state of Oregon, and shall, on the first day of September, 1925, cause said minor child, June Addison, to be delivered back to the plaintiff and to be properly chaperoned en route to plaintiff."
Plaintiff appeals from such order and the cause is submitted to us on appellant's brief only.
REVERSED.
It appears from the mother's affidavit that she and her daughter left their home here in July, 1921, and since that time have been and are now residents of the State of New York. We think no good purpose would be served in reviewing the facts as averred in the various affidavits. Suffice it to say, the plaintiff, who has recently remarried, appears to be a good mother, and we are convinced that June needs her care and influence.
The trial court, in modifying the decree, undoubtedly, was endeavoring to carry out an alleged agreement of the parents concerning the disposition of this girl, but we think such contracts should not take precedence over her welfare. They may be persuasive on the court, but certainly are not controlling. Parents cannot stipulate away the interests of a child, who, indeed, is the innocent victim of their marital troubles.
In divorce proceedings minor children are wards of the court. In our opinion it was error so to modify the decree. It is not necessary to consider the extraterritorial effect of such decrees, but attention is called to the holding of this court in Griffin v. Griffin, 95 Or. 78 ( 187 P. 598). Under the decree as modified, defendant's right to the custody of the child terminated September 1, 1925. It is now a moot question: State ex rel. v. Webster, 58 Or. 376 ( 114 P. 932).
The order modifying the original decree is reversed and plaintiff will recover costs and disbursements. REVERSED.