3 Or. 553 | Or. | 1869
In passing upon the points presented in this case, it must be borne in mind, that it was heretofore decided that the statement of facts annexed to the record of the judgment herein, did not meet with the requirements of the law, consequently, it will hot be considered. The case will be determined upon the record; and, as there is
It is assumed by appellant’s counsel, that inasmuch as the record shows that the defendant was the party at fault,' the court erred in awarding the care and custody of the infants to said defendant. And it is sought to base this assumption upon what appears to be a finding of fact recited in the judgment entry. It is claimed also that the court below, having granted the decree of divorce,.upon plaintiff’s complaint and at plaintiff’s instance, was bound, as a matter of law, to award to plaintiff (appellant), the care and custody of the infants. "We do not think that these assumptions are warranted by law. Subdivision 1 of section 497, page 271, of the code, vests in the court the power to make such decree “ for the future care and custody of the minor children of the marriage, as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper, giving the preference to the party not in fault. ” In carrying out this provision of the code, the court is called upon to exercise its sound discretion., In all matters of discretion, the general doctrine is, that nothing but an abuse of that discretion by the court below, will warrant the interference of an appellate court. The record herein discloses no such abuse. It must appear affirmatively, it cannot be presumed; for all legal presumption is in favor of the correctness of the findings and discretion of the court below. The presumption also lies. that the court below discharged its duty; that its proceedings were regular, and its action founded upon proper proof.
After the decree of divorce was granted the infants became, as it were, the wards of the court, and it was the duty of the court to make such disposition of them as would be just' and proper, taking into consideration their age and sex, and having in view their general welfare. With regard to the care and custody of the children, after a final decree for a divorce or separation, the object is not to gratify the wishes'of the parents merely, but to protect and provide