Opinion
Argued September 10, 1958
Affirmed October 1, 1958
Appeal from Circuit Court, Washington County, J.S. BOHANNON, Judge.
Owen M. Panner, Bend, argued the cause for appellant. On the brief were McKay and Panner, Bend.
Albert R. Musick, Beaverton, argued the cause for respondent. On the brief were Castles and Musick, Beaverton.
Before PERRY, C.J., and ROSSMAN, WARNER and McALLISTER, Justices.
AFFIRMED.
This is a suit for divorce brought by Chester H. Bryant, as plaintiff, against Irene C. Bryant, as defendant, who filed a cross-complaint also praying for a divorce. Both parties sought custody of the two minor children of the marriage; Robert, now 15, and Charlotte, now seven years of age.
The decree of the trial court granted plaintiff a divorce, custody of Robert and sole ownership of certain real and personal property. The decree dismissed defendant's cross-complaint but gave defendant custody of Charlotte and provided for the support of the child by plaintiff. The defendant has appealed.
We have read the record with care and believe the decree should be affirmed. Only one phase of the case need be mentioned. Defendant left her husband in 1954 and took Charlotte with her. It appears from the evidence that for some time after defendant left her husband she did not keep Charlotte with her but left the child in the care of other people, including defendant's mother who because of her age and other limitations was not able to provide a suitable home for the child. If we were convinced from this evidence that defendant had failed, or probably would fail, to properly perform her duties as a mother, we would grant custody of Charlotte to her father who has provided Robert with a good home and excellent care. Since the evidence on this question is inconclusive, we must rely on the judgment of the trial judge who had the advantage of observing the parties and hearing them testify.
Defendant challenged the sufficiency of the complaint for the first time in this court. Under these circumstances the complaint should be liberally construed and every reasonable inference or intendment invoked in aid of it. Igo et al. v. Butler et al., 199 Or. 423, 262 P.2d 675; Cross v. Campbell, 173 Or. 477, 489, 146 P.2d 83; and Siddons v. Lauterman, 165 Or. 668, 680, 109 P.2d 1049. We are satisfied that the complaint, when construed liberally, states a cause of suit. See Bothe v. Bothe, 183 Or. 237, 192 P.2d 256 and Neely v. Neely, 162 Or. 610, 94 P.2d 300.
AFFIRMED.
Neither party shall recover costs in this court.