FEWEL v. FEWEL

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District Court of Appeal, Second District, Division 1, California.

FEWEL v. FEWEL.

Civ. 13664.

Decided: January 20, 1943

Stewart, Shaw & Murphey and William L. Murphey, all of Los Angeles, for appellant. Reynolds & Painter and Howard Painter, all of Los Angeles, for respondent.

On April 13, 1934, plaintiff mother obtained an interlocutory decree of divorce from defendant father on the ground of extreme cruelty. By such interlocutory decree plaintiff mother was awarded the care, custody and control of the two minor children of the parties; one, a girl then five years of age, and a boy at that time aged three years, with right of visitation with the children conferred upon defendant father. When the final decree of divorce was entered on April 17, 1935, there was incorporated therein the foregoing provisions of the interlocutory decree.

On September 24, 1937, upon application of the defendant father and pursuant to stipulation of both parents, the court entered an order modifying the provisions of the final decree with reference to the times when each parent should have actual custody of the children in lieu of the prior existing provisions as to time of visitations by the defendant father.

Thereafter, on September 18, 1941, defendant father filed with the court an application supported by his affidavit for an order to show cause directed to plaintiff mother in re modification of the order of September 24, 1937, with reference to the custody of said minor children. As grounds for the issuance of such order to show cause against plaintiff mother, the defendant alleged (1) that plaintiff did not provide the proper care or training for said children in that they are deprived of the companionship of other children; (2) that plaintiff failed to provide the children with proper and adequate schooling; (3) that plaintiff had consistently, wilfully and without reason refused to comply with any and all orders of the court concerning the right of defendant father to see and visit with the children; (4) that plaintiff mother persisted in sending the children out of the State of California to boarding schools so that the father would be denied visitations with them; and (5) that changed circumstances made it necessary for the best interests of the children that they spend more time with their father.

Following the issuance of an order to show cause as prayed, the same came on for hearing October 1, 1941, and thereupon the following proceedings were had:

“Mr. Painter: (counsel for defendant father) I don't know whether we are permitted to butt into the proceedings of the court here this morning. I am engaged in trial over in Department 47.

“Mr. Murphey: (counsel for plaintiff mother) Mr. Painter told me that he could continue that for the purpose of this hearing.

“Mr. Painter: I told Mr. Murphey no such thing. I told him I would hope we got through before Wednesday.

“The Court: I tell you what I can do: if you wish I will give you the first out. It won't take but a minute.

“Mr. Painter: It will take more than a minute.

“The Court: It won't take over ten minutes.

“Mr. Painter: It will not take a minute under two days.

“The Court: No, it won't.

“Mr. Murphey: There is no moral issue involved in the custody matter.

“The Court: If there is no moral issue there will be no hearing of two days.

“Mr. Painter: If Your Honor please, I happen to know that it will take two days.

“The Court: I happen to know it will not take two days. I will put an investigator on it if it is necessary.

“Mr. Painter: I suggested that to Your Honor the other day. I am perfectly willing that Your Honor put an investigator on.

“Mr. Murphey: I don't think there is any necessity for that. There is no issue tendered as to moral fitness of my client.

“Mr. Painter: There is as to the welfare of the children.

“The Court: What do you mean by ‘welfare?’

“Mr. Painter: The manner in which they are being educated; the manner in which they are being taken care of by the mother at the present time.

“The Court: I will put an investigator on on your say so, if you think it is necessary.

“Mr. Painter: I think it is necessary.”

The court thereupon entered its minute order reading in part as follows: “Said matter is continued to November 7, 1941, at 10 a. m. Matter re custody is referred to Margaret Harpstrite, court investigator.”

When on November 7, 1941, the matter was again called, the record reflects that proceedings were had as follows:

“The Court: We are going to adopt the recommendation of the investigator, gentlemen, I will say to you.

“Mr. Murphey: May I file a return on the matter, Your Honor?

“The Court: What return?

“Mr. Murphey: The return of the plaintiff in response to the order to show cause.

“The Court: A return?

“Mr. Murphey: In the form of affidavits?

“The Court: What do you mean? What are you talking about?

“Mr. Murphey: Nothing more than we were served with the order to show cause why the custody of the children should not be changed; and in response to that order to show cause we have prepared a return.”

At this juncture in the proceedings plaintiff's counsel presented to the court a document entitled “Return on and Affidavit in Opposition to Order to Show Cause in re Modification of Order for Custody of Minor Children and in re Contempt, Also Application for Modification of Order Allowing Visitation.” Contained in this document were affidavits by plaintiff and five other persons challenging the averments contained in the affidavit presented by defendant father when he obtained issuance of the order to show cause. Upon being handed the just mentioned document containing the affidavit, the court remarked “You are a little late on that. We will file it, however. Everything has been done that can be done, or that should be done.” Following which statement, according to the engrossed bill of exceptions now before us, the court, without reading the said return and affidavits, ordered the said return and affidavits filed, and filed the same with the clerk of the court.

Thereupon the trial judge made his ruling modifying as follows the order by which plaintiff mother theretofore had custody of both children: “The order of the court is that the father shall have the custody, care and control of John, and that the mother shall have the care, custody and control of Mary Margaret. John is to spend every other week end with his mother, and that Mary Margaret is to spend every alternate week end with her father; that the children will spend Christmas eve with the mother and Christmas day with the father; that there shall be alternate visitations at all holidays; that John shall spend one–half of the summer vacation with his mother, and Mary Margaret shall spend one–half of the summer vacation with her father; that neither parent shall say anything derogatory of the other parent in the presence of the children; that these children shall not be taken out of Southern California without the written consent of both parties.”

Plaintiff's counsel thereupon noted in the record an exception to each of the court's statements, rulings and orders. On the same day, November 7, 1941, the court caused to be entered by the clerk a minute order as follows: “Order to show cause re modification of certain court order and for temporary restraining order and in re contempt comes on for hearing; plaintiff present with her attorney, W. L. Murphey, and defendant with Reynolds & Painter. Recommendation of Margaret Harpstrite, court investigator, is approved, filed and made the order of court. Plaintiff orally excepts to order and rulings of the court in open court.”

At the conclusion of the November 7th hearing the court filed with the clerk a document entitled “Recommendation by Margaret C. Harpstrite, Court Assistant, and Order.” It should be here noted that this document contained verbatim as recommendations what the court adopted as its ruling on November 7th as heretofore set out, and upon this document the court endorsed “Approved and so ordered. Wm. S. Baird, Judge of the Superior Court.”

On November 17, 1941, plaintiff mother filed her notice of appeal from said order of November 7th and from the whole thereof.

On December 27, 1941, defendant father made application ex parte and without notice to plaintiff for an order nunc pro tunc as of November 7, 1941, directing the clerk to file a supplemental affidavit of defendant Richard Wm. Fewel and that said affidavit be included in the clerk's transcript on appeal. On the same day the court made its order granting such application. The affidavit in question was in reply and answer to the affidavits theretofore filed by plaintiff on November 7, 1941, and hereinbefore referred to as “Return on and Affidavit in Opposition to Order to Show Cause, etc.”

On January 7, 1942, defendant served upon plaintiff and filed with the clerk proposed “findings of fact and conclusions.” On the day following plaintiff served upon defendant and filed with the clerk “Objections to findings of fact and conclusions and order proposed by defendant.” However, on January 13, 1942, the court signed and filed the proposed findings of fact and conclusions.

On January 5, 1942, the court signed and filed with the clerk an “order in re custody, care and control of Minor Children” which order conformed to the ruling theretofore made by the court at the conclusion of the hearing on November 7, 1941. On February 16, 1942, plaintiff filed her notice of appeal from such order of January 5, 1942, and from the whole thereof.

We shall first give consideration to the initial appeal taken from the order of November 7, 1941, wherein it is contended by plaintiff that the trial court erred and acted without its jurisdiction “in refusing to hear any evidence or read or consider the return and affidavits offered by plaintiff at the hearing; in referring the entire matter of the care, custody and control to a court investigator; in receiving a confidential report, entitled “Resume,” and “Recommendations” from the investigator, ex parte, without service of a copy upon counsel or affording counsel an opportunity to object thereto, and in basing each of its orders, changing the care, custody and control, entirely upon the said confidential report and recommendations of the said court investigator (made after interviewing witnesses, ex parte, not under oath, and excluding counsel from such interviews).”

That an action or proceeding such as the one now before us involving the change of custody of minor children from one parent to another is a judicial proceeding and that the decision therein must be rendered by a judge himself based upon competent evidence, admits of no denial. Const. of Calif., art. VI, § 1; Washburn v. Washburn, 49 Cal.App.2d 581, 122 P.2d 96; McGuire v. Superior Court, 137 Cal.App. 272, 30 P.2d 61. It is equally well established that in custody cases the paramount consideration is the welfare and best interests of the child, and there is another rule, not in conflict with the one just announced, which prescribes that when a court has decreed custody of the child there shall not be a change made as to such custody unless adequate cause for a change arises from changed conditions. Furthermore, it is the constitutional right of every citizen and litigant to have the laws governing them declared, applied and expounded by duly qualified judges and not by commissioners, investigators or other administrative officials authorized by the Legislature to assist a judge. As was tersely stated in a well reasoned and carefully considered opinion authored by Mr. Justice pro tem Hanson in Washburn v. Washburn, supra [49 Cal.App.2d 581, 122 P.2d 101], “Such help as may be accorded a judge to assist him in the exercise of his judicial functions may never be permitted to reach the point where some one else decides the case or an issue before him”; and further in the same case it is said with reference to court assistants and investigators, “They may act as messengers of and acquire information for the judge, but in no event may their influence upon the chancellor guide or control the decision of a cause.” Notwithstanding these wholesome rules, we are here confronted with a case wherein the trial judge in fixing a time for hearing of the order to show cause in re custody of minor children instructed the parties to “give my investigator, Mrs. Margaret Harpstrite, all the data you have now” and in ordering the parties to return on the date set for the hearing the judge admonished them “You will return––without witnesses because the report of the investigator will be final.”

When the matter was called for hearing the judge announced “We are going to adopt the recommendations of the investigator, gentlemen, I will say to you.” And that is exactly what the court did––adopted the recommendations of the investigator as the order of the court in re custody of the children. It might well be here noted that such court investigators are not authorized to recommend a decision to the court. Though they may be called “court assistants” they are not clothed with any judicial attributes. They are not in the same category as special masters, commissioners or referees, appointed by the court. They do not possess the power to administer an oath to those appearing before them; they cannot compel anyone to appear or testify before them, nor can they take any evidence. However high–sounding or impressive may be their official designation they are but investigators and nothing more. Their position is that of a hearsay witness, and they should be made available for complete cross examination on any matters concerning which they have made a report at the request of the judge. Issues presented to our courts must be tried and decisions thereon rendered by the judge alone upon sufficient and competent evidence. To again quote from Washburn v. Washburn, supra, “There is no back door to the courts for witnesses, investigators, litigants or others.” One has but to read the transcript on this appeal to realize the force and influence of the investigator's report upon the judge because the record discloses that the decision was based solely and alone upon the report and recommendations of such court investigator. This is not in accord with the law nor in consonance with the vested rights of litigants. Whatever halo has become attached to reports rendered by court investigators through custom, practice and a growing misapprehension by some courts as to their relation to certain of their attaches, we deem it both wholesome and timely to point out that the belief that the report of a court investigator is prima facie evidence is without legal sanction.

Respondent contends, however, that the court had before it his affidavit which afforded grounds for the order made, but the answer to this contention is contained in the statement of the trial judge himself “that the report of the investigator will be final” and again “we are going to adopt the recommendations of the investigator.” While we concede the right of the trial court to designate an investigator in a proceeding concerning modification of an order concerning custody of minor children to seek and delve into facts occurring subsequent to the previous order in re custody, but within certain definite limitations, and bearing directly on the issues involved in the order to show cause, and to report thereon to the court, we do not concede under the law the authority of such investigator to make recommendations to the court as to the order that should be entered nor do we find in the law any authority for the court to receive such a report as a “final” determination of the issues presented. That is exactly what occurred in the case at bar and the orders made herein must therefore be reversed.

Respondent contends nevertheless that appellant is estopped from challenging for the first time on appeal the procedure followed in the trial court when, as asserted by respondent, the appellant participated and acquiesced therein at the hearing in the court below. We are not unmindful of the rule that upon appeal a reversal may not be urged by reason of errors occurring in the trial court when a party has invited or failed to challenge erroneous rulings or procedure therein. The trial court is entitled to protection against thus being led into an erroneous ruling or procedure, and the adverse party in the action is entitled to have timely objection made in the trial court so that he may have an opportunity to meet the same and chart his course in that forum. Lyle v. Lyle, 53 Cal.App.2d 552, 127 P.2d 1006; 2 Cal.Jur. 241; Cummings v. Cummings, 97 Cal.App. 144, 275 P. 245. However, in the case at bar we cannot perceive wherein appellant either invited or acquiesced in the erroneous procedure followed by the trial judge. When the court first intimated an intention upon his part to refer the matter to an investigator, appellant's counsel demurred and said “I don't think there is any necessity for that.” Again appellant's counsel, according to the authenticated record before us, noted an exception to the order of reference and also filed exceptions to the proposed findings of fact, conclusions of law and the formal order, in all of which appellant emphasized her objections to the procedure followed in referring the matter to an investigator and in predicating the order affecting custody upon such investigator's recommendations. We must, therefore, conclude that appellant's objections to the procedure followed were timely and that both respondent and the court acted with knowledge thereof.

We do not deem it necessary to discuss or decide the question as to whether respondent was entitled to file a supplemental affidavit on December 27, 1941, because it is at once apparent that the ruling and order of the court made November 7, 1941, could not have been influenced thereby, and in any event, as heretofore pointed out the trial judge according to his own declaration predicated his orders primarily and exclusively upon the report and recommendations of the investigator which he unequivocally stated “would be final.”

The foregoing conclusions at which we have arrived render it unnecessary to consider other points raised.

For the reasons herein stated the orders and each of them from which these appeals were taken are reversed and the cause remanded with directions to the court below to proceed with a hearing or hearings on the order to show cause in accordance with the views herein expressed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concurred.