# Belmont v. Black

> Oregon Supreme Court · November 12, 1959 · 218 Or. 514

URL: https://www.frixlaw.com/law-library/cases/9626956

## Case

- **Full name:** In the Matter of Roger Paul Murphy, Alleged a Dependent Child BELMONT v. BLACK Et Al
- **Court:** Oregon Supreme Court
- **Decided:** November 12, 1959
- **Citations:** 218 Or. 514; 346 P.2d 367; 1959 Ore. LEXIS 447
- **Precedential status:** Published
- **Opinion:** Dissent by Sloan
- **Judges:** Lusk, Sloan, Warner, O'Connell
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626956

## How later opinions describe it (automated extraction)

- acknowledging a benefit to a child from the “mutual affection and companionship” between stepfather and child

## Opinion text

SLOAN, J.,
dissenting.
My convictions will not permit me to concur in the majority opinion. The doctrine that the state may not interfere with the parent and child relationship without just and substantial cause is sound. Only those who believe in total dominion by government could disagree. This case, however, does not involve *525 a parent and child. It is concerned with the well-being of a ten-year old boy now deprived of both father and mother and, by the majority opinion, left to the sole care and discretion of a stranger to the blood, a stepfather. What will be said here is not intended to malign the character and, perhaps, good intentions of that man. It is to indicate that the record is not as convincing to me as it is to the majority. I find doubt that the interests of the boy will be best served by leaving him to the unlimited control of the stepfather. It appears that the conscientious trial judge was beset by the same, or greater, doubt when he entered the order retaining judicial restraint on the immediate welfare of the boy. The boy is Roger, the stepfather, Black.
The majority proceed as though Black were the parent of Roger. He was not. The relationship of stepfather and son, of itself, does not create the status of in loco parentis. Sargent v. Foland, 104 Or 296, 306 , 207 P 349 . And the relationship, if established, may be terminated when the family ties which created it are dissolved. 67 CJS 808, Parent and Child, § 80. The trial court apparently was of the opinion that if the legal relationship of parent and child had existed it had been terminated. The existence of the relationship is one of fact. Ibach v. Hoffman, 184 Or 296, 304 , 198 P2d 266 .
Not long after the death of the boy’s mother, the stepfather placed the boy in the home of an older, married half sister of the boy, Royda Cole. Mrs. Cole also had small children of her own. From that time this young woman, and her husband, were the persons who bore the day to day responsibility of feeding, earing for and guiding the boy. It was this care that the trial court found to be good and wholesome. It *526 is to be remembered and emphasized that this was the only actual family relationship enjoyed by him. The trial court did not interfere with or alter it. The judge expressed confidence in the care the boy was receiving in that home and the purpose of his order was to make certain that that care continue. The majority opinion would indicate that the trial judge had interfered with this actual custody. Such is not the fact.
The evidence would establish that after Eoger started living with his sister the stepfather made visits to the Cole home and on occasions would take the boy fishing, to the movies and otherwise provide recreation. Nothing in the order of the trial court would interrupt that relationship. If Black had the interest in the boy which he professed, the court order would not prevent any activity in behalf of or for the welfare of Eoger that Black indicated he desired to do.
It is said in the majority opinion that there is no contradiction of the testimony quoted to the effect that Black had accepted the status of a parent. I think the evidence is contradicted, or at least partially so, by other conduct of Black.
The opinion mentions that by reason of his mother’s death Eoger received $78 per month social security benefits, later increased to $78 per month. This was paid to Black. After Eoger moved to the home of his sister Black paid to her $50 per month from this amount for Eoger’s care. Other than that he actually failed to account for any of the approximate $25 per month remaining. He testified that he used it for medical expense, clothing and other non-regular costs, but could not specify any such expenditure. It must be acknowledged that he would *527 not necessarily have been prepared to give an accurate accounting at the hearing held. But he should have been able to give some reasonable estimate of such expenditures. He could not do so. It was mentioned that he had an income of about $5,000 per year. Despite this there is no evidence that he expended any of his own money for the care and welfare of the boy, but to the contrary it can be inferred that he used the boy’s funds for his own purposes. Undoubtedly this prompted the trial court to appoint the sister as guardian of Roger’s estate so that she would receive and be responsible for Roger’s money. This court has held in Gerber v. Bauerline, 17 Or 115, 19 P 849 , that when a stepfather uses the funds of his stepchildren for their care and support it deprives the stepfather of parental status. A true parent would endeavor to hoard the funds of a small child for future need and endeavor to provide his child’s immediate support within the limits of his own earnings. In Harris v. Lyons, 16 Ariz 1, 140 P 825, 826 , the court applied the same rule:
“The law imposes upon the parent the duty of caring for his child during the period of its inability to care for itself, and only in exceptional cases may he use the estate of the latter for that purpose. * * *”
In the Harris case the court likewise had for determination the existence of parental status between a stepfather and a parentless child. The facts which prompted that court to decide that the stepfather had assumed the role of a true parent are so different than the facts in the case in hand that they bear notice ( 140 P 827 ):
“The record shows that the appellee claimed the right to the custody of Emma from the time of her mother’s death, and that he first placed her *528 with, one of his own blood relatives; that she was left with her grandmother in obedience to a request of his wife before her death; that the grandmother’s position was that of housekeeper, largely subject to the orders and direction of the appellee; that he furnished the house for them to live in, much of the time retaining a room for his personal use; that he exercised the parental rights of controlling and supervising the conduct, education, and employment of Emma, and at one time corporeally chastised her for disobedience. Practically the only surrender made by appellee was in the matter of Emma’s religious training, in which he deferred to the expressed wishes of his deceased wife and the wishes of the grandmother. The rights, powers, and duties claimed and exercised by him over the child were such as only a parent could lawfully claim and exercise. * * *”
The evidence in this case does not permit a finding of the existence of any of these pertinent facts.
State ex rel Williams v. Juvenile Court, 163 Minn 312, 204 N W 21, is heavily relied on by the majority. That ease, also, presents a different factual situation. There the father of the child in question was confined in a penitentiary. The stepmother, by dint of effort on her part and with assistance provided by her relatives, and in a home provided and maintained by her, gave the stepchild the same care and attention she gave to her own children. Upon such facts the court held that the stepmother was in loco parentis. Again, no similar facts existed in this case, except the fact that Black was a stepfather.
If in the instant case we were attempting to determine the relationship between Roger and his sister, the case would be more analogous to the Williams case. But here, the man claiming parenthood does not fulfill any duty owed between parent and child *529 other than claimed affection. He expends no ounce of effort to wash or mend the hoy’s clothes, help him with homework, render daily discipline, nor assume any of the other vexing problems or duties which confront a real parent. Nor, as we have mentioned, does he expend any of his own funds for required food and care. It is pertinent to note that the opinion in the Williams case invites comparison between that case and the ease of In re Besondy, 32 Minn 385, 20 N W 366, 50 Am Rep 579. In the Besondy case it was held that when a stepfather uses the funds or estate of his stepchild to provide care and support for the child it rebuts any presumption that he stands in the relationship of a parent. The Besondy opinion cites and quotes from Kent’s Commentaries in support of that view. The doctrine, therefore, is of ancient and well-established origin.
The cases I have examined all require a stronger showing of an acceptance of parental responsibility than that accepted by the majority in this case to establish the existence of the right sought to be established. See, for example, Young v. Hippie, 273 Pa 439, 117 Atl 185, 25 ALR 1541 , and the annotations following the ALR report of the case, and see cases cited in extensive footnotes in 1 Schouler on Marriage, Divorce, Separation and Domestic Relations, (6th ed) § 686, p 709. These considerations, together with Black’s neglect of his own child, no doubt were impressive to the trial court. And Black’s neglect of his own child was more than the failure to pay support money. He courted Eoger’s mother while still married to his former wife and thereby neglected his own family in the process. Following the divorce from his former wife he did not visit his own child. These facts and the fair inference to be drawn there *530 from also tend to contradict some of the assertions expressed in Black’s behalf.
One other factor must cast equal or greater weight upon our determinations. It has been said so many times' that it is almost a cliche that “great weight must be given the findings of a trial judge.” In no field of the law should this rule have more strict, not lip service, application. O’Beirne v. State, 194 Or 389 , 241 P2d 874 . The character and intent of a person seeking custody of children is of great, if not paramount, importance. How can we pass judgment, in a close case, when we have not seen and have had no opportunity to observe in action the person whose character or conduct is being tested? In this particular ease there were questions from the bench which lead me to believe the trial judge had doubt as to the veracity of Black. All we know are the words he answered, in print. When the questions were asked did he flush, squirm, delay his answer, shift his eyes, look longingly at his counsel or give a straightforward, unhesitating reply. We do not know. The trial judge did know. We can only know that the able trial judge was at least in doubt. I will not enforce my less informed opinion upon one who knows better than we the true character of the man in question. In eases involving the custody of a child, we should reverse the trial court only upon a clear strong showing. There is no such showing in this case. This is particularly true when we are attempting to judge upon events which occurred months or years before the case comes to our attention. In that event, of course, we can have no knowledge of intervening events. Even if it could be said that the trial court was wrong in this case we should do no more than remand the matter for further hearing. The *531 facts upon which, we are attempting to determine the future of this boy could well have materially changed since the date of the trial court’s hearing. I will not attempt to impose my judgment on the future life of a ten-year old boy upon the meager evidence before us.
As any parent well knows, there is a considerable difference between one having the responsibility of day to day feeding, clothing and guiding a ten-year old boy and one who makes an occasional visit for recreational purposes. Any trial judge experienced in custody matters knows, full well, that in a divided family the parent responsible for daily discipline and care suffers in a popularity contest with the parent who arrives occasionally to bring gifts or provide trips to the movies. It would be obvious in this ease, as in others, that Eoger would feel an affection for his stepfather, as well he should and continue to. But that does not prove that the stepfather should be vested with the sole determination of the future well-being of this boy.
I must emphasize again that if the effect of the trial court’s order was to terminate the relationship between Eoger and his sister I would heartily concur that the order could not stand. But to the contrary, the announced purpose of the trial court was to preserve this arrangement which, the evidence discloses, is the best home and only family relationship for the parentless boy. For that reason, if there were no other, I would affirm the trial court’s order.
Warner, J. and O’Connell, J. join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626956. Public record. Not legal advice.