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Sarty v. Forney

February 20, 1973

SARTY, APPELLANT,
v.
FORNEY, RESPONDENT



Appeal from Circuit Court, Clackamas County. P. K. Hammond, Judge. No. 65914.

Robert E. Martin, Portland, argued the cause and filed the brief for appellant.

Frank P. Santos, Oregon City, argued the cause for respondent. With him on the brief were Santos & Schneider, Oregon City.

Schwab, Chief Judge, and Foley and Thornton, Judges.

Schwab

This appeal involves the custody of children. In 1967, when the plaintiff-father obtained a decree of divorce by default, he was awarded the custody of the three children of the parties, the mother being given visitation rights. At the time of the June 1972 hearing which gave rise to this appeal, the three children ranged in age from 8 to 13. The oldest and the youngest children are girls. After an extensive hearing the trial judge found that there had been a material change of circumstances which led him to the conclusion that the best long-range interests of the children would be served by transferring custody to the mother, with rights of visitation in the father.*fn1 From this order the father appeals.

A detailed opinion by an appellate court primarily serves three functions: (1) it tells the litigants why the court decides the appeal as it does; (2) it demonstrates to the members of the court and to the litigants that the court has reviewed the record or

those portions of it relevant to the issues raised by the litigants, and that it has considered the issues raised in light of relevant statutory and case law; and (3) it provides guidance to bench and bar in their collective effort to resolve future problems of like nature.

The last function is probably less important when the opinion is that of an intermediate appellate court than when it is the opinion of a court of last resort.

There are several reasons, advanced with increasing frequency, for not publishing detailed opinions in all cases. We are here concerned with only one such reason -- that in certain cases a detailed opinion has a potential for harm to persons involved which may outweigh the theoretical advantages. We think many child custody cases fall in this category, particularly since they are cases which by their very nature are determined primarily on factual rather than legal grounds. The incidents which give rise to child custody litigation are never pleasant, and often sordid. Such litigation tends to emphasize human weaknesses. While the published opinion of an appellate court in a custody case is rarely a "best seller," it is nevertheless a public record which can in later years come to the attention of the children who were the subject of the controversy.

In the case at bar the record does not disclose anything of a sordid nature on the part of either parent. Both appear to be interested in the children, and while both have had and may still have some problems, both appear through the record as basically fitting the description, "decent people." The circumstances of both have changed since the divorce. Our

review of the record in light of the standards laid down in Tingen v. Tingen, 251 Or 458, 446 P2d 185 (1968),*fn2 leads us to the conclusion that the trial judge was probably correct in changing custody from the father to the mother. We say "probably," because as the trial judge noted, little in life is certain, and probably among the least certain is the answer to the question, "Which of two basically ...


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