McLaughlin v. McLaughlin

454 P.2d 857 (1969)

Della Marie McLaughlin, Appellant, v. Theodore McLaughlin, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 6, 1969.

Decided May 28, 1969.

*858 Warner V. Wasley, La Grande, argued the cause and filed the briefs for appellant.

R. Thomas Gooding, La Grande, argued the cause for respondent. With him on the brief were D. Dale Mammen, and Burleigh, Carey & Gooding, La Grande.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

Argued and Submitted at Pendleton, May 6, 1969.

PER CURIAM.

This is an appeal from a decree of the trial court refusing a change of custody from the father to the mother of two children, a boy, five, and a girl, three.

The parties were divorced on January 29, 1967. Custody of the children was awarded to the father for the period of one year upon condition that the children reside with their paternal grandmother and be cared for by her. The decree expressly provided that at the end of one year the mother could request a change of custody upon the basis of her conduct during that period of time. The court's decree upon such application is the basis for the appeal. The court left the custody with the father but allowed the mother the right to have the children for two summer months.

The testimony indicated that the father suffers from psychomotor epilepsy and that his earnings are insufficient to care for both himself and the children. He, therefore, receives welfare aid for the support of the children. It also indicated that the principal care of the children is borne by the grandmother, who is 57 years of age and with whom the father and the children reside. The care the children receive is good.

The evidence also indicates that the children had not been given to the mother originally because of her drinking and association with men other than her husband. Her drinking habits have improved substantially in the period since the divorce. Approximately three months subsequent to the divorce the mother remarried. Her new husband was on probation for writing an insufficient funds check. Approximately two months prior to the present hearing she was hospitalized as the result of taking an overdose of sleeping pills. Since her divorce she has had sexual intercourse with her uncle and a cousin but has claimed that they raped her. She filed no formal complaint concerning their conduct.

The decree of the trial court is affirmed.