Suit for divorce by Louisa M. Phillips against Allan Q. Phillips. From a decree dismissing the suit, plaintiff appeals.
REVERSED. Suit for divorce by the plaintiff, Louisa M. Phillips, against Allan Q. Phillips. From a decree dismissing the suit, plaintiff appeals. *Page 160 The complaint is in the usual form as to the matters of the marriage of the parties, the residence of the plaintiff, her previous good conduct, and as to the alleged cruel and inhuman treatment accorded her by the defendant. The specific allegations of cruelty are as follows:
"The defendant herein is quarrelsome both with plaintiff and the children of said defendant, and when quarrelsome curses and swears at both the children and this plaintiff. That defendant is mean to the children. That defendant has threatened to knock this plaintiff through the window, has threatened to kill plaintiff and threatened upon several occasions to hit her. That said defendant did, about four years ago, kick plaintiff, severely injuring her.
"That said conditions have become such that it is impossible for plaintiff and defendant longer to live together as husband and wife."
The complaint further alleges that the defendant is the owner of the real property which is described therein and which totals some two hundred sixty-eight acres in Marion County, Oregon.
Plaintiff alleges that the children referred to in the complaint are not the children of the plaintiff and the defendant, but are the children of the defendant only; that one of the children, Ethel Phillips, is of the age of fifteen years; that the defendant is mean and abusive to said child and that in the opinion of the plaintiff it would not be safe to leave said child with the defendant. The plaintiff, therefore, seeks custody of the minor child of the defendant together with temporary support for herself; permanent alimony; support for the minor child, Ethel Phillips; reasonable attorney's fees; and a one-third interest in the real property of the defendant. *Page 161
The answer of the defendant was a general denial.
On the 13th day of September, 1943, the case went to trial upon the issues made by the complaint and answer. After the presentation of evidence, both parties rested and thereafter and on September 17, 1943, the defendant filed a motion for the reopening of the above suit for the purpose of taking additional testimony. No affidavit was filed in support of the motion, but in the motion itself it was represented to the court that the plaintiff had been previously married and had two minor children who were not then and for several years past had not been in her custody. It was stated that the evidence to that effect would be offered on the question of the plaintiff's demand for the custody of the defendant's children. No other grounds for reopening the case were set forth in the motion.
On September 28 the defendant moved the court for an order permitting the filing of an amended answer which was tendered with the motion. In support of this motion, defendant filed an affidavit containing the following allegation:
"That since the previous hearing in this suit, my son, Delmar Phillips, has told me that during the strawberry season of 1943 he observed the plaintiff and my son, Donald Phillips, commit an act of adultery in the cabin at my farm home.
"Previously, I did not know of the aforesaid testimony * * *." The amended answer repeats the accusation as above stated. The defendant does not seek a divorce for himself, but prays only for the dismissal of plaintiff's suit.
On October 18, by order of the court, the cause was reopened and on January 15, 1944, additional testimony *Page 162 was taken upon the new matter set forth in the amended answer. The court made general findings in favor of the defendant and dismissed the plaintiff's suit, except as to $75 suit money which had been awarded to the plaintiff and had not been paid. The plaintiff received judgment for the sum of $75 and appeals from the decree dismissing her suit.