Johnston v. Johnston , 155 Or. 256 ( 1936 )

Suit by Katherine B. Johnston against Frank H. Johnston, wherein the defendant filed a motion to modify the decree by awarding him the custody of a daughter. From a decree modifying the original decree by placing the daughter in the custody of James L. Bowlby and another, maternal grandparents, the defendant appeals.

AFFIRMED. The plaintiff and defendant were married in April, 1917. Three children were born — two sons and a daughter. On June 6, 1935, the wife obtained a decree of divorce against her husband, having charged him with cruel and inhuman treatment. Defendant filed a general denial but offered no evidence on the trial. The custody of the boys — with the consent of the mother — was awarded to the father. The girl, Katherine, now fourteen years of age, was placed in the custody of the mother.

In January, 1936, the defendant filed a motion to modify the decree by awarding to him the custody of the girl on the ground that the mother was not a fit and proper person to have the care and custody of her daughter. The court modified the decree by placing the girl in the custody of the maternal grandparents with whom the mother and her daughter have been living for several years. Defendant appeals.

The record in this case has been carefully considered and we are convinced that the welfare of Katherine will be best subserved by affirming the decree of the trial court. It would serve no good purpose to set forth the evidence. The girl does not wish to be placed in the custody of her father. While her desire is not controlling, it is — especially in view of her age — very persuasive. Katherine is now in a good home and we have every reason to believe that, under such influence, she will develop into a good woman.

The decree is affirmed.

Plaintiff is entitled to costs and disbursements.

BEAN, ROSSMAN, and KELLY, JJ., concur.