OMLIE ET UX v. Hunt

BEAND, J., dissenting.

The parties stipulated (1) that the case “be submitted to the Honorable Joseph B. Felton for re-trial based upon said transcript of testimony without the court receiving any additional evidence.”] (2) “That the court shall interview the respective parties hereto and make such further inquiry from them as the court may desire.” (Italics mine.) I consider it clear that when the word “evidence” is used in a stipulation filed in a pending suit it refers to evidence which is receivable in a law suit and that the words “without * * * additional evidence” mean without receiving more evidence than that which has been received by the court in the course of the suit. The word evidence is defined by "Webster thus: “Evidence. State of being evident; That which makes evident or manifest; One who bears witness. (Eare); Law. That which is legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it; means of making proof; medium of proof.” Webster’s New International Dictionary, Second Edition. When lawyers use the word in connection with litigation they use it in the legal sense. In this case they meant that the court would not reopen the case for the purpose of receiving additional sworn testimony. Only by so construing para *488 graph (1) of the stipulation can it he harmonized with paragraph (2) thereof which authorized the court to “interview the respective parties * * * as the court may desire.” (Italics mine.) I too would avoid “internal inconsistency” in the stipulation, but not by construing away the provision authorizing the court to interview the parties. Are we to assume that the court was merely to sit and look at the plaintiff and defendant without conversation, as a jury views the premises ? Or are we to assume that it was understood that the court was to desire only to discuss the weather with them, or some other subject irrelevant to the issues of the case? As realists we must know that when the court in its decree said it had interviewed the respective parties it meant that it had made “inquiry” concerning the merits of the case; — otherwise, why mention the interview?

Rea v. Rea, 195 Or 252 , 245 P2d 884 , involved a question of child custody. In it we held that the right of appeal and a fortiorari the right to a trial de novo is not a constitutional right but a statutory privilege which may be waived and that if parties agree upon an independent investigation they do so knowing that the record.will be incomplete and that the Supreme Court sitting in equity will not try a case de novo unless the entire record is before it. The decision was limited to the facts of the case, but the principle there set forth applies with double force in the case at bar. In the Rea case the court was considering one of the broad sociological and psychological problems which arise when the issue is the welfare of an infant. If there is any similarity between a view of the premises and an independent investigation by a judge (which we doubt), it would be found in'the kind of investigation which examines the home conditions under which *489 the competing parents are living, or which observes the infant to ascertain its attitude toward the parents.

In the case at bar the issue presented a cold question of law and fact, to wit, had the defendant wilfully deserted and neglected his child? The majority suggests that the interview may have assisted the trial court in determining the character and fitness of the respective parties, but this was not a custody case and fitness was not the issue. The interview was with the contesting parties, not with the child.

In Rea v. Rea we took notice of the conflict between the legal and the sociological approach in child custody cases. ( 195 Or 257 ). That conflict does not appear in the pending case. There is no more reason for a trial judge to interview the parties in a desertion case than there is in a suit to quiet title, or an automobile damage case. In Rea v. Rea we said at 258:

“* * * Any person who desires to stand upon his strict legal rights, and to preserve his right of appeal to this court, may insist that no fact should be brought to the attention of the trial court and that no influence should be exerted upon it, except in the manner of the common law, by testimony and argument in open court, with the right accorded to both parties to testify, to produce witnesses, and to confront, cross-examine or contradict adverse witnesses. * * *”

We recognized that even in so fundamental a matter as the right to a public trial according to the course of law, parties may consent to investigations, extrajudicial in nature, and a court may in its discretion act upon their consent or stipulation, but we then held, and I think we should now hold, that when the parties have voluntarily departed from standard judicial procedure they waive any right of appeal for the simple reason *490 that the record which they send to this court is not shown to be the record on which the trial court acted. If for a moment we should abandon legalistic reasoning and look at the case as practical men, I suspect that we would all agree that the interview and “further inquiry” made by the trial court had something to do with the merits of the case. At least it should be agreed that the record fails to show that the evidence here is the sole basis of the trial court’s decision.

I am of the opinion that the defendant has waived his right of appeal, and under the facts of this case, the result is not an unjust one.

EOSSMAN, J., dissenting.

The transcript of evidence has been read twice by me and I have studied the briefs carefully. The impression of John' Hunt, the father of the three little girls who are the subject matter of this proceeding, which I gained from the readings is basically different from the conception of him which the majority entertain. In the record is a description of bim which was written by the State Welfare Commission, obedient to OES 109.310(3), and which says, in part:

“He did not complete grade school. * * * He is described as being completely unstable and unreliable, and it is reported that he drinks to excess. His present whereabouts is unknown.”

Judge Felton, the capable circuit court judge, from whose decree this appeal was taken and who saw Hunt, expressed an unfavorable opinion of him in a comprehensive memorandum opinion from which the following is taken:

“He knew that his wife, the mother of the children, was seriously ill. He knew that when she left California in March of 1952 and returned to Salem *491 she was going to die. * * * Although he was fully aware of his wife’s physical condition, he made only one inquiry concerning his wife and children after they had returned to Salem.”

The memorandum opinion continues:

“While the two older children were in California in the early part of 1952 and the father made arrangements to place the children in a nursery school for several weeks, and even though he was steadily employed at a good wage, he attempted to borrow $40.00 from Mrs. Omlie to defray the expense incident to the children being in the school.”

Thus, that expenditure of $40, which was by a wide margin the largest Hunt ever made for his children, was given grudgingly and was paid by Hunt individually only because he could not get the money from Mrs. Omlie. I quote further from Judge Felton’s opinion:

“* * * and, if we wish to say it that way, during that year and prior thereto, his presence, his care, his love, protection, maintenance and opportunity for the display of filial affection certainly came in pitifully small dribbles.

“* * * I think the father’s intent is conclusively demonstrated by his conduct as established by the evidence in this ease. By no stretch of the imagination can it be said that the father’s conduct was excusable and justifiable. * * *

“What would have been the fate of his children had it not been for the Omlies ? That is a question that the father, in view of his conduct, cannot answer.”

Such was the opinion of Hunt which Judge Felton formed after studying the evidence and talking with him. [See the stipulation mentioned in the opinion of the majority and of Mr. Justice Brand] .

The Omlies, who, Hunt concedes, took excellent care of the children and who, he admits, '“are fit and proper *492 persons to adopt said minor children,” expressed their disappointment in their son-in-law npon more than one occasion. Their ill opinion of him was not based upon whim, caprice or prejudice, but was the result of their experience with him which showed that he was unstable and untrustworthy. The following is taken from Mr. Omlie’s testimony:

“Q You say you have nothing against him?

“A Nothing personal, as far as the man is concerned, but I have against the way he wanted his family.

“Q You never approved of the marriage, did you?

“A No.

“Q Did you ever feel he was good enough for your daughter?

“A Plenty good enough if he would have behaved himself.

“Q Did you ever think he was good enough to be the father of your daughter’s children?

“A Yes, if he had taken care of them.

“Q But you didn’t think he was good enough the way he acted?

“A He wasn’t good enough to be a father that way.”

The above shows that those who have dealt with Hunt and have not been compelled to gain their impression from court reporters’ notes do not entertain the opinion of Hunt which the majority have drawn.

Only three witnesses gave testimony in this proceeding — Hunt and the two Omlies. Hunt did not challenge or contradict the testimony of the Omlies in any particular. The Omlies are, plainly, people of good character who sought unselfishly to perform a tender service for three little girls whose stricken mother could not care for them, and whose father would not. *493 The record offers no reason whatever for rejecting anything that the Omlies said as untruthful; but, as we have seen, Hunt has been described by a responsible source as “completely unstable and unreliable.” Yet the majority manifest a peculiar preference for his testimony. They view his indifference to his children with benign tolerance and, by giving him the benefit of inferences and surmises, find in him traits which, I believe, ill befit a man who, in the language of the street, walked out on his children when they needed a home and a father. 0

Although the record shows clearly that Hunt lacks a sense of responsibility, it reveals a defect in his nature which is even more relevant to this case. It shows that he has never taken himself seriously as a father and has never recognized the duties that are owed by a father to his offspring. The latter have never been a factor in his life and have not engaged his thoughts. His predominant hankering has been to be carefree and foot-loose. If he had had affection for his children or a yearning for their company, he could not have voluntarily abandoned them to the Omlies nor lived in one city while they were in another. He was able-bodied and had an income adequate to the needs if he wished to provide a home for his children. His mother was near at hand to help him maintain a home if he needed help of that kind. Even non-relatives, who have fondness for each other, occasionally denote that fact by the sending of little tokens of friendship. But tokens of affection for his little daughters were so lacking in Hunt’s treatment of them that he seized upon an occasion in November of 1951, when it developed that “two or three packages” were sent, to claim that he himself sent them. But, after admitting that he could not recall the contents, he shortly conceded that *494 it was Ms wife who made the purchases and mailed them. If he ever was with his children during the holiday season or upon their birthdays, he wholly failed to mention the fact. From the fact that he sought to lay false claim to the “two or three packages” for the children that Ms wife bought and paid for in November of 1951, and the fact that he mentioned no others, I assume that he never gave Ms children any birthday or holiday presents. Hunt’s interest in his children was so meager that he was able to wander off for undisclosed destinations without giving them any thought and without maldng for them even the slightest provision. Before disappearing he would not bid the children good-bye or leave with the Omlies an address or telephone number so that he could be summoned in the event of necessity. I assume that I need not add that before departing he would never leave with the Omlies even one dollar with which they could provide care for Ms children, nor would he assure Mmself that the Omlies would assume the responsibility which he was shirking. In virtually all instances he did not even tell the Omlies that he was about to go. Let us take an example. After Ms wife’s death he made a short call upon the Omlies and at its conclusion, when he was asked where he could next be reached, gave this answer, according to Mrs. Omlie’s uncontradicted testimony: “He said he got roped into some Mnd of atom high secret and he couldn’t tell where he was going.” That was his answer. The majority indicate that Hunt was induced to withhold Ms address from the Omlies for fear that they might interfere with his relationship with his wife, but the above answer, representative of others which he had made, was given after the wife’s death.

Bearing children does not always make a woman *495 into a mother, and, likewise, procreating children does not necessarily make a father out of a man. In the latter circumstance we very likely have the explanation for the long-continued indifference which Hunt has manifested for his children. He is averse to the duties of parenthood and prefers to be out with the boys. He has no interest in the children.

The majority state:

“It is agreed that during the statutory one-year period John Hunt failed to provide proper care and maintenance for the children.”

That concession is well justified. Circuit Judge Kimmell, before whom the testimony was taken, conducted the following examination of Hunt:

“Q I should like to ask you this: Between October, 1951, and October, 1952, would your children have survived on the support you gave them?

“A I didn’t give them any, sir.

“Q Your answer would be ‘no’ then?

“A Yes, sir.

“Q You were able-bodied at that time?

“A Yes, sir.

“Q Andworldng?

“A Yes, sir.”

Hunt is able-bodied. Throughout the period with which this cause is concerned he was steadily employed at good wages. He makes no intimation that in the long period in which he contributed nothing for the support of his children he had any obligations whatever that he sought to meet. Nothing in the record relieves or diminishes the effect of the answers which Hunt made to Judge Kimmell’s questions.

In order to avoid misunderstanding, let us take note of the fact that the word “willfully” as employed in *496 subsection (6) of ORS 109.320 (adoption statute) does not mean maliciously or with evil purpose. It exacts nothing more than to require that the parent, who is charged with having deserted and neglected his children, acted wittingly and voluntarily. ORS 161.010 says:

“ ‘Wilfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or omission referred to, and does not require any intent to violate law, to injure another or to acquire any advantage.”

From the foregoing we see that ORS 109.320 requires nothing more than volitional or voluntary desertion and neglect.

An Oregon parent owes a statutory duty to support his children. ORS 109.010. The fact that the grandparents gave the children a home and maintenance did not excuse Hunt’s neglect. 67 CJS, Parent and Child, § 15(b), p 690. State v. Langford, 90 Or 251 , 176 P 197 , says:

“* * * according to the great weight of judicial opinion and according to what we believe is the plain intent of our statute, the fact that the mother alone or together with other persons furnished all the support needed for the child does not constitute just or sufficient cause for any failure by the father: * *

Since Hunt, throughout the pertinent period, was steadily employed at good wages and had no obligations except to his wife and children (both of whom he neglected), there can be no doubt but that his neglect was willful.

An annotation in 35 ALR2d 683, says:

“However, it has been held or recognized in many cases that the wilfull failure of a parent to *497 provide support for Ms cMld is at least one factor tending to establish an abandonment or desertion, # # *

If the rule stated in the annotation just quoted, which is based on good sense, were applied to this case, the decree challenged by Hunt would be affirmed; but the majority seem to think that Mrs. Hunt entered into some sort of understanding with her parents for the maintenance of the cMldren which now can be employed to acquit Hunt of his long-continued neglect of the children.

I can find no warrant in the record for the majority’s conclusion that the Omlies agreed to care for the cMldren — certainly none that they agreed to relieve their son-in-law of Ms duty to provide a home and care for his offspring. Very likely Mrs. Hunt felt when ill health overtook her that her parents would accept the children and care for them, but there is nothing in the record wMeh indicates that the Omlies were prompted by anything except compassion and a spirit of parental duty. It is crystal clear that they had no thought of relieving Hunt of any of his duties. To the contrary, they had the wholesome desire possessed by all parents-in-law that their son-in-law would establish a home and take care of his cMldren in a creditablejmanner. Nothing in the record suggests that the Omlies coveted the three little girls for their own home and were thereby disposed to relieve Hunt of Ms duty. To the contrary, it shows that they wanted him to develop a sense of responsibility and attend to his family. They accepted the children only when their daughter, a helpless invalid, departed for the sanitarium and Hunt vanished from sight. They had no alternative. Mrs. Omlie expressed the situation bluntly in this way: “She (Mrs. Hunt) come and left the chil *498 dren. It was either me or the welfare to take care of them.” The following is taken from her farther examination :

“Q Mrs. Omlie, did John Hant ever ask yoa for the castody of the children daring that time?

“A No, never.

“Q Did he ever say he wanted to take the children with him and establish a home?

“A Never.”

That testimony is ancontradicted and anchallenged. Hant made no effort to diminish its import or relieve him therefrom. Mr. Omlie testified, in part:

“I am willing to take care of them so they will not be objects of this coart.”

More coaid be qaoted from the testimony which woald amplify and add farther significance to the above qaotations. The two testified at length that Hant was always welcome in their home and that they were eager for him to come and display an interest in his children. They placed no limitations apon him in that respect. It is significant that he made no effort to contradict that testimony.

The above shows that the three little girls were virtnally left on the doorstep of the Omlies’ home. Obvionsly, the mother, as a victim of paralysis, was helpless, and, since her hasband shirked the daties of parenthood, she had no alternative except to bring the children to her parents. The conclasion is inescapable that when his wife’s incapability demanded that Hant shoald provide a home and fatherly attention for his helpless children, he shanned the daty and preferred the life of the carefree.

Shortly after the Omlies sent their daaghter to the sanitariam in Santa Monica which treated paralytics, *499 Hunt left for Santa Monica. Before going he did not bid his children good-bye or make any provision whatever for them. He did not even leave a forwarding address so that he could be reached if the children, whom he was abandoning in such an unf atherly manner, needed help.

The above facts establish willful neglect and indicate that the Omlies never entered into any understanding which released Hunt from his duties as a parent.

In their treatment of the situation, the majority deal with this ease as though the only responsibility which a father owes to his children is to provide them with food. But the Old Testament declares: “Man doth not live by bread alone” and the decisions point to the duty of the parent to devote to his child sufficient time, thought, affection and guidance so that it will develop into a useful member of society. In re Watson’s Adoption, 238 Mo App 1104, 195 SW2d 331 , says:

“A wilfull abandonment then would seem to imply * * * an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance and the opportunity for the display of filial affection.”

Schouler, Marriage, Divorce, Separation and Domestic Belations, 6th ed, § 772, declares:

“The three leading duties of parents as to their legitimate children are recognized at the common law: First, to protect; second, to educate; third, to maintain them. Those duties are all enjoined by positive law; yet the law of the natural affections is stronger in upholding such fundamental obligations of the parental state.”

Let us now see the extent to which Hunt discharged the duty of bestowing upon his children fatherly care, *500 affection and guidance so that they would develop good character and eventually become creditable members of the community. He has scarcely seen the youngest of his three children. She is virtually a stranger to him. If he ever sent her an affectionate message or endearing gift, the record is entirely silent upon the subject. Yielding effect in full to his own testimony, the following constitutes all that he did for his other two children in the period of January 1,1951, to October 10, 1952: (1) he purchased for each of the two older girls a pair of jeans and some other garment; (2) while he was present, his wife sent to the girls “two or three packages” the contents of which he described in this way: “I don’t know exactly what all the wife put in the packages. She sent those packages”; (3) “I’d taken them to a show and taken them to lunch a time or two, I don’t recall exactly how many times”; (4) during a period of about two and a half weeks, while his wife lay helpless in the sanitarium, he provided day nursery facilities for the two older girls at an expense of $7.00 per week for each.

Hunt conceded that he never gave the children any money. He also conceded that while his wife was in the sanitarium he frequently had his dinner in its dining room and had the price charged to the Omlies. The foregoing is all that this father did for his children in the period of January 1, 1951, to October 10, 1952. Surely, no one can say that he discharged his duty to give his children his presence, attention, care, affection and guidance.

I shall now mention other facts which show his neglect of his family. December 18, 1950, Janice, the youngest of the three children, was born and after Christmas Hunt drove the family of five to Vancouver, Washington, for a visit. Prior to that, Hunt, his wife *501 and the children had lived for several months with the Omlies. January 3, 1951, Mrs. Hunt and the three children returned in a taxicab to the Omlies’ home at three in the morning. Some unhappy incident had taken place. From that day on Hunt never provided a home for Ms wife or cMldren. "When he returned from Vancouver a week after Ms wife and cMldren, he, too, took up Ms abode with the Omlies. Presently he sold the family’s few belongings, including the tricycles wMch the Omlies had given to the two older cMldren.

Since it is a father’s duty to provide a home for his children, is it not pertinent to ask why did not Hunt provide a home for Ms children after the group had returned from Vancouver, if he had affection for his children. Many husbands who have invalid wives maintain homes and take care of the wife and cMldren in it.

April 4, 1951, Mrs. Hunt, at the expense of her parents, went to the sanitarium in Santa Monica and stayed there until the following Christmas, virtually nine months. In the meantime, the three cMldren remained with the Omlies in their home in Riekreall. So far as the record indicates, there was notMng to prevent Hunt from securing a home and moving the children into it with Mm. His mother lived nearby and could have helped Mm manage the home. But, in lieu of taking care of his children at the hour when they needed a father’s help, he departed for Santa Monica without saying a word to his children or the Omlies. In the succeeding nine months he provided them with neither a home nor maintenance. Of course, he did not see them in that period and did not communicate with them.

At Christmastime of 1951 Mrs. Hunt, at the expense of the Omlies, came north and spent Christmas with her cMldren and parents in the Omlies’ home. *502 Hunt did not come. January 4, 1952, she returned, at the Omlies’ expense, to the sanitarium. Upon Mrs. Omlie’s recommendation, she took the two older children with her. Some months prior to that time Hunt— if his word can be believed — had decided to establish a home in Santa Monica. He was employed there in an airplane factory. Yet when Mrs. Hunt returned to the sanitarium with the two little girls and had no place to care for them except in her hospital room, Hunt did not provide a home. If a father owes a duty to provide a home for his children, surely it can be said that the time had come for this father to respond to that duty. No one would have interfered with him if he had established a home. Seemingly, he never gave the matter even a fleeting thought. Three weeks later, Mrs. Hunt suffered a second stroke which, according to Hunt, was so severe that she “couldn’t talk and couldn’t move.” Yet he left the little girls in the mother’s room, and it evidently never occurred to him that it was high time for him to provide a home for his offspring. Presently, the Omlies, upon hearing of their daughter’s plight, came to her bedside.

March 28,1952, when the sanitarium reported to the Omlies that treatment could help Mrs. Hunt no further, they returned her to their home in Eiekreall. Hunt had known of the plan for two weeks and, as we have said, had long claimed a purpose to establish a home for his family in Santa Monica, but he did not protest against the Omlies’ plans to move his wife to Eiekreall nor declared that he wished to keep his wife and children with him. To the contrary, Mrs. Hunt and the children departed without even a word of well wishes from him. He remained in Santa Monica and was still there September 28, 1952, when his wife died. After the Omlies brought their daughter north they pur *503 chased a spacious home in Salem for themselves, their daughter and the three children.

Before the date of departure from Santa Monica Mrs. Omlie asked Hunt for his address and telephone number so that, in the event of necessity, she could communicate with him. He gave her a telephone number which, it developed, was that of his employer, who had tens of thousands of employees. As a result, the Omlies were unable to summon him, notwithstanding their diligent efforts, when the following events occurred: (1) July 17,1952, Mrs. Hunt suffered a third stroke which was very severe; (2) September 28,1952, Mrs. Hunt died; (3) three days later the funeral service was held.

The oldest of the three children is now almost eleven years old. All three are now enrolled in school. They have not lived with their father since January 4,1951. In the meantime, they have formed their attachments in the neighborhood and at the school which they attend. The evidence indicates that the children have made good progress.

I shall bring this dissent to a close by copying the following from the annotation in 35 ALR2d 664:

“A degree of judicial impatience with the vagaries of parents has been manifested in a number of cases in which there is evidence of conduct constituting an abandonment or desertion, but in which there is also evidence of later parental repentence, and the termination of such conduct. Although it appears to be generally conceded that repentence or termination may be effected prior to adoption, many courts will not permit such a termination to be effective to prevent an adoption, where the conduct has continued for a prolonged period, and where, because of new ties formed by the child, his *504 welfare would be jeopardized by refusing the adoption. In some jurisdictions, the requisite duration in time of the abandonment or desertion is provided by statute.”

I dissent.