Norman v. Norman

In order to be definite, I quote from Mrs. Norman's testimony as follows:

"Q. Now, in your answer you set up that he started coming clandestinely to the home of the parties. When was that, please? A. The first time he was there he came with Mr. Bob Reckert. He is a friend of Mr. Norman's and myself. And Mr. Gott was going to California and he was going to have breakfast at his home and he stopped by to pick up Mr. Norman and myself and they had a drink. Q. When was that? A. Let's see. Must have been in August. Q. August, 1943? A. The year I met him, yes, because he was leaving for California. Q. Now, when was it that you and Mr. Gottcommenced having sexual relations? A. Well, it was in January, inJanuary when he came back. Q. What year? A. Two years ago. Q.1944? A. Yes. Q. Where did this take place? A. East Vancouver.Out in East Vancouver in Mr. Norman's and my home. Q. Do youremember what time in January that was? A. The first time wasJanuary 16. Q. And when was the next occasion? A. Well, it wastwo or three months later. Q. You would say April? A. It could be April. Q. Andwhere did that take place? A. Out at East Vancouver. Q. At thehome? A. Yes. Q. And the next occasion? A. Well, I can't recallall of them, but they all took place right in the house. Q. Abouthow many — what number of times did you have sexual relations? A.Oh, about ten. . . .

"Q. In July '45 you went to Spokane? A. That's right. Q. Did you go any place else? A. I went to Coeur d'Alene, Idaho. Q. Well, the next day — A. If you have the date, you know more about it than I do. Q. When did you leave for Spokane? A. I left eight or nine o'clock. Must have been around nine. Q. What time did you leave the home? A. Around eight. Q. And who took you from home? A. I left the house with my baby by myself. Q. How did you get down town? A. Taxicab. Q. Where did you meet Gott? A. He was in the cab also. . . .

"Q. Where did you stay that night? A. Davenport Hotel. Q. Under what name? A. Mr. and Mrs. B.M. George. Q. Yes. You occupied a room together that night? A. Yes. Q. When you testified before you testified falsely? A. I know I did. Q. You perjured yourselfon that occasion? A. Yes. Q. How long did you stay at the Davenport? A. One night. Q. Where did you go then? A. Coeur d'Alene. Q. Where did you stay? A. Desert Hotel. Q. Also as Mr. and Mrs. B.M. George? A. Yes. Q. And you testified differently the other time? A. Yes, I know I did. Q. Now, when did you pick up your suitcase in Coeur d'Alene? A. I didn't pick it up. I didn't need it. It was shipped back to Vancouver. Q. Didn't you call for it? A. No, I didn't. Q. Did Mr. Gott call for it? A. No, I had sufficient things for the baby and that is all I needed. Q. How many days did you stay at Coeur d'Alene — at the Desert at Coeur d'Alene? A. I can't truthfully say. I don't remember. Q. You remember whether it was one day or three or four nights? A. It was three or four nights. Q. You occupied the same bed? A. We had twin beds. Q. You weren't in the same bed together? A. No. . . .

"Q. Where is Gott now? A. In Portland. Q. Whereabouts in Portland? A. He works at Ritchie's Cigar Store, Fifth and Stark. Q. Where is he living now? A. Vanport. Q. Whereabouts in Vanport? A. Well, I don't know the number. Q. When were you over there last? A. I was there yesterday. Q. And before that when were you there last? A. The night before. Q. And you stayed there all night? A. No, I have never stayed there all night. Q. Does he have an apartment alone? A. No, with two other fellows. Q. And how many times have you been there since the first of December? A. Since the first of December — well, maybe 15 times. Q. Whenwas the last time you had sexual relations with him? A. Oh, acouple of weeks ago. Q. Where? A. At the apartment. Q. Whichapartment? A. Where he lives. Q. And prior to that about howlong? A. Oh, about a week. Q. You have been having sexualrelations with him regularly, is that correct? A. Yes, I have. Q.Over how long a period? A. Well, since last August, September —somewhere in there. Q. You mean a period of once a week oroftener or not so often? A. Oh, about once a week. . . .

"Q. Now, he was coming there to the house out at EastVancouver? A. That's right. Q. Practically every night after Mr.Norman went to work, isn't that right? A. No, not every night. Q.I say practically every night. A. What do you mean practically?Q. Well, at least several times a week? A. Yes. Q. And that hadcontinued since when? A. Well, after I quit work at the shipyard.Q. Well, when did you quit work at the shipyard? A. July 15th. Q.1943? A. Yes. Q. Or was it 1944? A. No, two years ago. This is1945 so it would be two years ago last July. Q. Or is it a yearago? A. Two years ago. Q. And about how often would he come toyour place? A. Well, about — for a while he didn't come regularlybecause he was holding down two jobs and he worked swing shiftand he continued working. Then when he quit working swing shifthe began to come over in the evening. Q. When did he quit swingshift, do you know? A. I believe it was in November. Q. In '43?A. Yes, the following November.

"THE COURT: This January date, was it 1944 or 1943? MR. SNIDER: As I understand it, two years this coming January. THE WITNESS: Yes.

"BY MR. SNIDER: Q. And at least when he wasn't working swing shift — let's see, Mr. Norman worked swing shift. Gott would wait until Norman had gone to work on swing shift then he would move in. When he quit work on swing shift and went to Vanport, when he got off work he would come over in the evening. Mr. Norman would come in at 12:30 or 1:00 o'clock and Mr. Gott was gone when he came home. Well, then Mr. Norman, for a while, worked the graveyard shift? A. Yes, he did. Q. What time did Gott get thereduring that time? A. Oh, he came around 8:30 or 9:00 when he was working. Q. When he was working graveyard, Isay. A. Yes. Q. Where was Mr. Norman? A. Oh, he was workinggraveyard. Q. No, when he was working graveyard? A. Mr. Normanused to leave the house around 11:30 and he would come after hewent to work. Q. About how long afterwards? A. Oh, sometimes afew minutes, sometimes thirty minutes, maybe an hour. Q. Then heleft in the morning before Mr. Norman got back? A. He would leavearound five or six o'clock. Q. And that was several times eachweek? A. Yes, sir." (Italics mine.)

Appellant does not drink or gamble, nor does the record indicate that he has any other bad habits. He was an assistant superintendent in the mechanical department of the Kaiser Shipyards in Vancouver, Washington. He was a hard-working man and had almost paid for his home in Vancouver. His household furniture and automobile were paid for, and he had a savings account of twenty-one hundred dollars in the bank. Aside from that, he had purchased sixty-one fifty-dollar war bonds.

Appellant had no knowledge of his wife's misdeeds until July, 1945, when she journeyed to Spokane with Gott.

Appellant's sister, who has brought up two boys of her own, had taken care of the baby for some time before the trial, and testified that she was willing to assist her brother in taking care of his child.

The majority opinion sets out certain evidence given by respondent. I cannot determine the reason for so doing. Respondent admitted that she was a perjurer. She was not believed by the trial court. The reason for granting a decree of divorce to appellant is contained in the following excerpt of the trial judge's memorandum opinion:

"The right of the plaintiff to a divorce is almost undisputed. The defendant's cross-complaint is based on technical cruel treatment consisting largely of neglect. While there may have been some neglect of the wife on the part of the husband, I can not find that it was of a sufficiently serious nature under all the circumstances of the case to warrant granting a divorce to the defendant. The neglect charged was mainly subsequent to the misconduct of the defendant and therefore, of course, constituted no excuse for her conduct. On the whole state of the record, the divorce is granted to the husband as plaintiff."

There is presented in this case a most alarming theory. Counsel for respondent in his brief stated:

"No lesser authority than the Archbishop of York commented recently upon the matter of adultery, the same appearing in the Oregon Journal (Portland) in a news item under the London date line of May 22, 1946, in which he is quoted as follows:

"`The Archbishop of York, condemning "easy toleration" of divorce, said today that adultery should not be considered an unforgivable wrong. "We must teach the duty of forgiveness," he said in a presidential address to the Convocation of York. "It never must be taken for granted that an act of adultery has inflicted a wrong which can never be forgiven or remedied. Genuine forgiveness can heal deep wounds.["]'

"We can reasonably assume from this that this high ranking church authority does not consider adultery under all circumstances as amounting to gross immorality."

I must differ with counsel in his interpretation of the statement made by the English clergyman. I must also differ with the conclusion of the trial court and my fellow judges relative to the disposition of the child of appellant and respondent. The question for consideration in this case is not that of forgiveness, but rather the welfare of the child.

Adultery is condemned in no uncertain words in the Holy Bible. (See Ex. 20:14; Deut. 5:18; Heb. 13:4; Mat. 5:27; Rom. 13:9; and Gal. 5:19.)

The penalty:

"And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death." Lev. 20:10.

"Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, . . . shall inherit the kingdom of God." I. Cor. 6:9, 10.

The legislature of the state of Washington has condemned adultery:

"Whenever any married person shall have sexual intercourse with any person other than his or her lawful spouse, both such persons shall be guilty of adultery and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than two years or by a fine of not more than one thousand dollars: . . ." Rem. Rev. Stat., § 2457 [P.P.C. § 113-71].

Our law also condemns perjury:

"Every person who, in any action, proceeding, hearing, inquiry or investigation, in which an oath may lawfully be administered, shall swear that he will testify, declare, depose or certify truly, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed is true, and who, in such action, proceeding, hearing, inquiry or investigation shall state or subscribe as true any material matter which he knows to be false, shall be guilty of perjury in the first degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years." Rem. Rev. Stat., § 2351 [P.P.C. § 118-1].

Respondent says that she loves her child. The record shows, by the continuance of her relations with Gott to within a short time before the trial, that she was more concerned with her relations with Gott. She continued in these relations even when she knew that she was in danger of losing the custody of her child.

But respondent says she will marry her paramour, Gott. I maintain that a home so constituted is not a fit and proper place to rear a young American, because the moral atmosphere could not be worse.

On the one hand we have an honest, sober, industrious man, doing his best by hard work to build a home for his wife and child — on the other, a woman and a man insensible to the laws of God and man.

The majority opinion places a premium upon lawbreakers — condemns the honest — and sentences a child to an immoral atmosphere which cannot make of him a good citizen.

The judgment should be reversed, and the custody of the child given to appellant.

SCHWELLENBACH, J., concurs with SIMPSON, J.