Hertzen v. Hertzen

BROWN, J. It is a well-established principle that, as between tribunals of concurrent jurisdiction, the one which first takes cognizance of a controversy can continue it to the end. This rule has not been violated in the case at issue. The court that granted the decree has continued its jurisdiction relating to the custody of the minor child. On November 10, 1919, a decree of divorce was granted the plaintiff by the Circuit Court of the State of Oregon in and for Multnomah County. The decree provided, among other things, that the care and custody of Charles Hertzen, minor child of plaintiff and defendant, be awarded to plaintiff, but that the defendant be permitted, “at proper and suitable times, to visit and see said minor child.” On May 4, 1920, the Circuit Court for Multnomah County, upon the application of the defendant, modified the decree, thus enlarging the privilege of the father in the matter of visiting his child. No appeal was taken from this order. Thereafter, the motion hereinbe [426] fore set out was filed in the same court by the plaintiff. A minor child of divorced parties remains a ward of the court which dissolved the bonds of matrimony, and is not bound by any decree as to the source or extent of its maintenance: McFarlane v. McFarlane, 43 Or. 477, 484 (73 Pac. 203, 75 Pac. 139); Gibbons v. Gibbons, 75 Or. 500 (147 Pac. 530). Such child, however, is to continue to be virtually a' ward of the court: 19 C. J. 341. It was held in Ex parte Garcia (Tex. Civ. App.), 187 S. W. 410, that a court granting a divorce cannot secure exclusive power to dispose of minor children of the marriage, and after the decree has been rendered, another court may, circumstances having changed, determine the question of the custody of the minors. However, the rule in this state is, that an application for modification of a decree relating to the custody of a minor child should be made to the court in which the decree was rendered: Ex parte Bowers, 78 Or. 390, 398 (153 Pac. 412); 19 C. J. 352. Under the provisions of Section 514, Or. L., the court was empowered to modify the decree relating to the right of the defendant to visit his child: McKay v. McKay, 77 Or. 14, 16 (149 Pac. 1032); Mack v. Mack, 91 Or. 514 (179 Pac. 557). This court has held that a provision in a divorce decree which awards the custody of a minor child to one of the parties is merely tentative: Matthews v. Matthews, 60 Or. 451, 457 (119 Pac. 766); Bedingfield v. Bedingfield, 88 Or. 711 (173 Pac. 255). In McKissick v. McKissick, 93 Or. 644, 649 (174 Pac. 721, 184 Pac. 272), the court quotes with approval from Gibbons v. Gibbons, supra: [427] “The welfare of these infants is paramount to the rights of any other person.” The court then says: “The_ motion before us is in the nature of a new proceeding based necessarily upon matters occurring since the former decree. We cannot, in the absence of an appeal, go behind the former adjudication and make gleanings from the evidence upon which the suit was there determined, or the custody of the child adjudicated * #. “We remember, as the cardinal principle, that the best interest and welfare of the child are paramount to the rights or privileges, even of the parents.” As a result of the divorce suit, the court had full authority to provide for the future care and custody of Charles Hertzen, the minor child of the parties: Section 513, Or. L. A court may be defined as the body in the government organized for the public administration of justice, at the time and the place prescribed by law: Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328, 120 Am. St. Rep. 786). The decree of divorce in the instant case was not granted by Honorable Wm. N. G-atens, Judge, but by the Circuit Court of the State of Oregon in and for Multnomah County, Wm. N. Gate ns, Judge Presiding. It was rendered by “a tribunal established for the public administration of justice, composed of one or more judges who sit for that purpose at fixed times and places, attended by proper officers.” Words & Phrases, Second Series. While there are seven judges and seven departments of the Circuit Court of the State of Oregon in and for Multnomah County provided by law, there is but one court, and the several departments are all departments of the [428] same court: Gardner v. Gardner, 38 Or. 149 (54 Pac. 809); Combs v. Combs, 99 Kan. 626 (162 Pac. 273). The law creating that tribunal and conferring upon it power, as such, in plain language enacts that “it shall be lawful to do any of the business of said court in either department.” .In the case- at bar, the court had jurisdiction of the cause and of the parties. The cause was a controversy between the plaintiff and the defendant concerning the divorce and the future maintenance of their minor child. The decree rendered by the Circuit Court for Multnomah County, Oregon, cannot be questioned here, or elsewhere. It is conclusive upon the parties to it, until reversed or altered by the proper court in the jurisdiction where given. Appellant asserts in her brief that— “A judge who perhaps for days or even weeks has sat and heard a case is more competent to decide it, and every phase of it, than another judge to whom some feature of it is presented on a hurried motion, supported by affidavits.” The wisdom of this observation is obvious, but it does not affect the jurisdictional question in this case. The department in which Judge Tazwell sits is designated “Department No. 7.” The circuit judge provided for by Chapter 59, Laws 1919 (Sections 3132-3140, Or. L.), “shall sit in a department to be designated by the rules of the Circuit Court by an appropriate number, and shall be known as the department of probate, but the judge of such department shall, in addition to the duties in this act prescribed, perform the general duties of a judge of the Circuit Court.” Section 913, Or. L., reads: [429] “1. Tie judges of the Circuit Court in tie fourth judicial district of tiis state, or any two or more of them, may act in joint session for tie trial or determination of any matter before tie court, including tie trial of jury cases # *. “2. Tie said judges or a majority of tiem may divide tie business of tie said court between tie said judges and may otierwise regulate said business by rules or otierwise, and each of tie said judges may separately try actions at law, suits, in equity, criminal actions, appeals, and all otier cases and proceedings iereafter brougit in said court during tie same term or at tie same time as may be ordered by said judges or a majority of tiem. “3. All actions at law, suits in equity, criminal actions, appeals, special proceedings, and all cases iereafter brought in said court, shall be numbered in tie regular and consecutive order of the filing thereof. * * “5. Tie judges of said court, or a majority of them, siall jointly have power to make all needful rules and regulations not inconsistent with tie law, to render effectual the provisions of tiis section and facilitate tie transaction of business.” Section 914 provides: “All business found in one department belonging to tie otier, ‘ according to tie above classification, may be transferred by order- of the court, so as to be heard and determined in tie proper department; but it shall be lawful to do miy of the business of said court in either department.” Tie court acted within its jurisdiction in overruling the plaintiff’s objection, and in considering her motion. Tiis case is affirmed. Aketrmed. Mr. Justice McCourt did not participate in tie consideration of tiis case.