Gibbons v. Gibbons

Opinion by

Mr. Chief Justice Moore.

1. Minor children of divorced parties remain the wards of the court which dissolved the bonds of matrimony, and, as such children were not parties to the suit, they are not bound by any decree as to the source or extent of their maintenance: McFarlane v. McFarlane, 43 Or. 477, 484 (75 Pac. 139). The welfare of these infants is paramount to the rights of any other person, and their support and education should be borne equally by their parents if they are able, but, if not, then by the father or mother who is financially responsible. The court granting the decree of divorce is authorized to modify it at any time so as to provide for the care, custody and support of the minors, and may *504 impose such, burden upon either or both parties to the suit: Section 514, L. O. L.

When the plaintiff wedded Mr. Hall is not disclosed. It must be assumed, however, that he then engaged to support, maintain and educate these minor children who were charges upon their mother.

2. The stipulation of defendant’s counsel to enter a general appearance for their client in the divorce suit, in consideration of the elimination by the plaintiff of her claim for alimony and suit money, does not seem to have made any provision for the care of the children. Nor could any binding agreement to that effect have been consummated, so as to deprive the wards of the court of their right to maintenance, if the party to whom their custody was given were thereafter to become unable longer to supply their necessities.

3. Evidently the plaintiff believed this burden rested upon her pursuant to the stipulation, for from the time it was entered into, June 16, 1911, until April 20, 1914, when this motion was filed, she assumed and discharged that duty. In her reply affidavit the plaintiff admits she received from the defendant $3,600 and from her mother $10,000, but asserts that most of this money has been laid out in purchasing in Portland a home, which is encumbered as stated in the original affidavit, and that the remainder has been expended in caring for her family. In paying for the past maintenance and education of the minors the plaintiff hitherto evidently had sufficient means with which to discharge these obligations, and, having done nothing more than her duty, she is not entitled to any remuneration therefor.

If the plaintiff and Mr. Hall are unable longer to care for, support and educate these children, as might appear from her affidavit, and the defendant possesses *505 sufficient means for that purpose, he should he obliged to aid in maintaining them. As a condition for assuming such accountability, it is but reasonable that he should desire the custody of some of the children, and particularly the youngest, Byron E., now 8 years old, in order that he may take him away from the baleful influences of his stepfather’s saloon before its evil effects have seriously begun to mold his character.

The only evidence that accompanies the transcript consists of the affidavits mentioned. No findings of fact were made, and it is impossible to state with any degree of certainty the basis of the conclusion reached. It is but reasonable, however, to suppose that the explanation here given was the theory adopted by the court. As an application for a modification of the original decree, which is sought herein, may be renewed at any time by showing the fitness of the plaintiff to retain the custody of the minor children and of the defendant to secure their guardianship, when such question arises it can then be determined. It is not deemed essential now to send the cause back to determine the issue of present support.

Therefore the order herein complained of should be affirmed, and it is so decided. Affirmed.

Mr. Justice Bean, Mr. Justice Benson and Mr. Justice Harris concur.