COLE v. COLE

Factual and Procedural Background

Plaintiff M. M. Cole and defendant Elsie E. Cole were married on September 3, 1933. Plaintiff filed a complaint for divorce on April 20, 1936, and an amended complaint on July 17, 1936. In her answer to the amended complaint, defendant failed to deny paragraph six. The trial court dismissed plaintiff's complaint, granted a divorce to defendant, directed that the minor child be delivered into custody of the court to be placed in a private boarding home selected by the court, and required plaintiff to pay $15 per month for the child's support and maintenance. Plaintiff appealed from the decree of the Circuit Court of Multnomah County (Judge Clarence H. Gilbert). The Oregon Supreme Court heard argument November 2, 1937, and affirmed the decree on November 16, 1937.

Legal Issues Presented

1. Whether the defendant's failure to deny paragraph six of plaintiff's amended complaint operated as an admission or was properly treated as an oversight given the way the trial was conducted.
2. Whether the allegations in paragraph five of the new matter in defendant's answer sufficiently connected plaintiff with the alleged ill treatment of defendant by plaintiff's parents (i.e., whether the last clause could be construed to charge plaintiff with permitting and approving that ill treatment).
3. Whether defendant's testimony was credible and whether plaintiff's testimony and that of his witnesses sufficiently established his charges (in particular, whether illicit relations continued after defendant left her parental home).

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

• Plaintiff argued that defendant's failure to deny paragraph six of the amended complaint should operate against defendant (i.e., as an admission) and thus support reversal.
• Plaintiff contended that paragraph five of the new matter in defendant's answer did not sufficiently connect plaintiff to the alleged mistreatment by plaintiff's parents.
• Plaintiff asserted that defendant's testimony was entirely unworthy of credit and that plaintiff's testimony sufficiently proved the allegations in his amended complaint, including continued illicit relations after defendant left her parental home.

The opinion does not contain a detailed account of the respondent's separate appellate arguments beyond the matters reflected in the court's analysis of the points raised by the appellant.

Table of Precedents Cited

Court's Reasoning and Analysis

The court addressed the three points raised by plaintiff in turn.

1. On the failure to deny paragraph six: The court concluded the omission was an oversight because the whole record showed the trial was conducted as if that paragraph had been denied. Both parties presented their versions of the facts and "treated the record in the same way they would have treated it if issue had been formally joined." On that basis, and citing prior Oregon decisions (Howell; Larsen; Minard), the court treated the record as if issue had been joined and considered the matter on the merits.
2. On the sufficiency of paragraph five of defendant's new matter: The court held that, in the absence of a motion to make the pleading more definite and certain after issue was joined and trial on the merits, the last clause of paragraph five could be construed to charge plaintiff with permitting and approving ill treatment of defendant by his parents. The court quoted the clause: "plaintiff deserted the defendant and child and returned to his parental home and concurred with his parents in their conduct towards the defendant."
3. On credibility and sufficiency of proof: The court found no error in the trial judge's acceptance of defendant's testimony and concluded that plaintiff's testimony and that of his witnesses failed to establish the charge that illicit relations continued after defendant left her parental home. The court declined to undertake a detailed review of the sordid testimony, stating no good purpose would be served by doing so, and concurred with the trial court's conclusion.

Based on the foregoing analysis, the court affirmed the decree and remanded the cause so that the circuit court could select and approve a private boarding home for the minor child in accordance with the decree.

Holding and Implications

AFFIRMED.

Direct consequences: The Oregon Supreme Court affirmed the circuit court's decree dismissing plaintiff's complaint and granting a divorce to the defendant; the decree's provisions directing that the minor child be placed in the custody of the court to be placed in a private boarding home and requiring plaintiff to pay $15 per month for the child's support remain in force. The cause was remanded to allow the circuit court to select and approve the private boarding home as directed by the decree.

The opinion does not discuss broader legal implications beyond its application of established procedural authorities regarding omissions in pleadings and the court's treatment of the record when the trial proceeds on the merits; no new legal rule or broader precedent is articulated in the opinion.

Opinion by KELLY, J.; BEAN, C.J., and BELT and ROSSMAN, JJ., concurred.