Matthews v. Matthews

Mr. Justice McBride

delivered the opinion of the court.

1. There is no inflexible rule which controls the discretion of the court in providing for the custody of a minor child in cases of this character. Subdivision 1, Section 513, L. O. L., provides that the court shall have power to further decree “for the future care and custody of the minor children of the marriage, as it may *454 deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault.”

. There have been few appeals to this court from adjudications in such cases. Three are cited by counsel for appellant, and these we will now consider.

In Jackson v. Jackson, 8 Or. 402 , the Supreme Court had the testimony before it, upon which it decided that the mother was not a woman of good moral character, and that the father was a suitable person to have the custody of the child. In this case the court below had given the custody of the infant to the maternal grandfather, and not to the mother. In respect to this part of the decree, the court say:

“This, however, is virtually placing it under her control, as'she also resides with him. As between the father and gi-andfather of a child, the former certainly has a better right to its care and custody, unless he is manifestly an improper person to take charge of it, which does not appear to be so in this case.”

In Lambert v. Lambert, 16 Or. 485 ( 19 Pac. 459 ), the father of the minor obtained the divorce, and the court gave the custody of the child to the mother. The evidence was before the court on appeal, and was considered by them, and upon that evidence they gave the custody of the child, not to the father, but to J. H. Lambert, the grandfather. The court, after considering the evidence, say:

“The testimony shows that the appellant is engaged in business, and much better able to support the child than the respondent, and its age and sex favor his being given such preference. We are of the opinion, in the absence of a finding and proof, that it would have been improper to award the care and custody of the child to the appellant; the circuit court was not justified in giving the respondent the preference in that regard.”

*455 There seems to be a hiatus between the premise laid down by the court, namely, that the father was entitled to the custody of the minor, and the final conclusion reached, that the custody should be given to the grandfather. The fact seems to be that the court did what courts usually do in these cases—gave the custody of the child to the person most likely to look after its welfare. It is true that the court incidentally mentions the fact that no finding had been made that the father was an improper person to be intrusted with the care of the infant, but, as we shall presently show, such finding would have had no controlling influence, if it had been made.

Barnes v. Long, 54 Or. 548 ( 104 Pac. 296 : 25 L. R. A. [N. S.] 172), was a habeas corpus proceeding, brought by the father of a minor against its maternal grandmother. The mother had been given the custody of the child in divorce proceedings, and subsequently died. The grandmother, without any order of the court, attempted to retain its custody as against the father. “ The court held that, in the absence of any showing that the father was an improper person to care for the child, he was entitled to its custody. The case does not seem to be in point here.

If we take the findings here as importing absolute verity, it appears that the plaintiff is not an adulteress, and that she is a woman of good moral character, who has been guilty of certain indiscreet conduct which age and experience will, no doubt, correct. The trial judge had the parties before him and'heard the testimony, and, in the absence of these, we must conclude that he found correctly. If defendant had desired an affirmative finding as to his qualifications to care for the child, he, no doubt, could have obtained it by a request to that effect. It appears that the child is a little girl under four years of age, and the court, no doubt, concluded, *456 and perhaps correctly, that she would, for the present, be better off in the care of her mother than anywhere else, and we are not disposed to reverse his decree.

2. In addition to what has already been said, we do not feel that, as a matter of law, we have any jurisdiction to pass on the matter on this appeal. Suits in equity are tried de novo in this court. While the findings of the lower court in an equity case may be, to some extent, advisory, in cases where the testimony is conflicting, and where the circuit judge had an opportunity of hearing and seeing the witnesses and thereby judging of their credibility; yet, when brought here on appeal, unaccompanied by the testimony, they present nothing from which this court can find any fact or base any conclusion of law. Upon appeal in such cases, this court must make its own findings, and this it cannot do in the absence of testimony. The reason for this is plain. A court may make a wrong finding, or one not justified by the testimony, and yet render a correct and righteous decree. In this case the court found that the plaintiff was not immoral, but that she had been indiscreet. It might be that with the testimony before us we would conclude that she was both or neither. We are not concerned with the findings of the lower court, but with the facts produced before it on the trial, and these are not .before us.

Following this view, it has been many times held by this court, that an appeal, which brings up .only the decree and findings of the lower court, presents only one question for review here, namely, the sufficiency of the pleadings.

Howe v. Patterson, 5 Or. 353 , is a case where the transcript contained only the pleadings and the decree and findings of facts, without any evidence accompanying it. This court, in affirming the decree of the lower court, say:

“The Civil Code (Section 533) provides that ‘upon an appeal from a judgment, the same shall only be reviewed *457 as to questions of law appearing upon the transcript; but upon an appeal from a decree given in any court, the suit shall be tried anew upon the transcript and evidence accompanying it.’ This evidently means that it shall be tried over again oh the facts, as well as the law, and this cannot be done in the absence of the testimony * * It is insisted, by appellant’s counsel that, the judge, on the hearing of this cause in the court below, having found certain conclusions of fact, and having inserted them in his decree, they are conclusive upon the parties on appeal. To this proposition we cannot assent. An appeal from a judgment, in an action at law, as provided for in our Code, is in the nature of a writ of error at common law, because it expressly provides that 'a judgment can only be reviewed as to questions of law appearing upon the transcript.’ Thus it will be seen that on appeals in actions at law issues of fact cannot be reviewed by this court. But, as it is provided that, on an appeal from a decree in a suit in equity, 'the same shall be tried anew upon the transcript and evidence,’ it is obvious that where testimony was taken in the court below it must be brought here, so this court may try the cause anew, as well upon the facts as upon the law.”

In Wyatt v. Wyatt, 31 Or. 531 ( 49 Pac. 855 ), the case of Howe v. Patterson is quoted and expressly approved; Mr. Chief Justice Moore saying:

“It would be impossible to modify the findings of fact without having before us the evidence upon which they are predicated, or to correct conclusions of law not properly deducible therefrom. * * This being so, the only question before us for consideration is, Does the complaint state facts sufficient tó support the decree?”

See, also, Morrison’s Estate, 48 Or. 612 ( 87 Pac. 1043 ).

3. In many instances, these orders are merely tentative, and in this case, if it should transpire that plaintiff has proved unfaithful to the trust committed to her, or that her conduct is such that it is not for the best interest of the child to permit her to longer retain its custody, *458 defendant has always an adequate remedy by applying to the court for a modification of this portion of its decree.

For the reason heretofore assigned, the decree of the circuit court will be affirmed. ■ Affirmed.