Dent v. Pollard

PER CURIAM. This is a divorce suit in which the decree awarded custody of the children of the marriage, two boys aged [400] 11 and 12 years, to the defendant father. Thereafter the plaintiff moved the court to modify the decree by awarding custody of the children to her. After a hearing the court denied the motion and plaintiff has appealed. The record on appeal must be prepared and .transmitted to the Supreme Court in the manner provided in OKS 19.074 to 19.098. OKS 19.074 provides that in every case the trial court file shall be transmitted to the Supreme Court as part of the record. Unless a transcript or a narrative statement in lieu of a transcript is filed, the record shall consist of the trial court file alone. An appellant who wants the record to include a transcript must, at the time of filing the notice of appeal, also serve and file a “designation of such parts of the proceedings and exhibits as he desires to be included in the record in addition to the trial court file.” OKS 19.074(2)-(a). In this case the appellant failed to file such a designation and for that reason the transcript was stricken from the record on motion of the respondent. As a consequence this case is before us on a record consisting only of the trial court file. Without a transcript we are unable to determine whether the trial court erred in refusing to award plaintiff custody of her children. The only question which we could consider, if raised, is whether the pleadings support the order appealed from. Matthews v. Matthews, 60 Or 451, 456, 119 P 766; Wood v. School District No. 13 et al, 107 Or 280, 214 P 589; Portland Mortgage Co. v. Elder, 152 Or 406, 408, 53 P2d 1045; Andersen v. Turpin, 172 Or 420, 432, 142 P2d 999; In re Clark, 214 Or 24, 323 P2d 334. No question is raised concerning the pleadings in this case and the order of the trial court is affirmed.