Bass v. Bass

• Decision Date: 21 February 1968
• Docket Number: No. 832,832
• Citation: 437 P.2d 324
• Parties: Suzanne Karen BASS, Appellant, v. Larry Eugene BASS, Appellee.
• Court: Alaska Supreme Court

Page 324

437 P.2d 324

Suzanne Karen BASS, Appellant, v. Larry Eugene BASS, Appellee.

No. 832.

Supreme Court of Alaska.

Feb. 21, 1968.

John M. Stern, Jr., Anchorage, for appellant.

John S. Hellenthal, Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

RABINOWITZ, Justice.

In the superior court's decree of divorce it was adjudged that the 'legal custody' of the parties' minor son be 'retained in both parents'; on the other hand, 'physical custody' of the infant was awarded to the paternal grandparents. ¹ In addition to granting appellant reasonable visitation rights, the court's decree expressly reserved 'jurisdiction over the question of final custody of the minor child.' ² Appellant's cardinal contention on this appeal is that the court erred in awarding custody of her son to the paternal grandparents.

Criteria for resolution of custody issues have been enunciated in our decisions beginning with Rhodes v. Rhodes. ³ There we said that:

In determining the custody of children the trial court should be guided by the rule of quite general application that the welfare and the best interests of the children should be given paramount consideration. ⁴

Also pertinent here is our decision in Harding v. Harding ⁵ where it was said:

While, as a general rule the courts give the mother preference in awarding the custody of her children, if she is found to be a fit and proper parent, the rule is contingent upon 'other things being equal' and subject to the discretionary power of the court to safeguard the best interests of the children.

Further articulation of general principles concerning child custody can be found in Wilson v. Mitchell ⁶ where we stated:

Where there is a controversy between a parent and grandparents over the custody of a child, we have held that:

'(The) parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents.' ⁷

The record in this appeal discloses that the trial judge found that appellant was an unfit mother, and that the 'welfare of the child would best be served by awarding physical custody' of the child to the paternal grandparents. ⁸

Our task in this appeal is to determine whether the trial court misapplied the broad discretion vested in it in determination of custody questions ⁹ and whether or not the court's findings were clearly erroneous. ¹⁰

Our review of the conflicting evidence ¹¹ relating to the custody question has led us to the conclusion that there is ample support in the record for the court's findings, and that the trial judge did not commit an abuse of discretion in placing temporary physical custody of the child in the paternal grandparents. The record shows appellant's emotional immaturity, ¹² her general neglect of the child's physical needs, the lack of attention on her part to the child's health, and appellant's overall lack of interest in bringing up the child. Also demonstrated was the fitness of the child's paternal grandparents to exercise temporary physical custody. ¹³ We also deem it significant that the trial court 'expressly reserve(d) jurisdiction over the question of the final custody of the minor child' in its decree. ¹⁴ Under the factual circumstances of this record, we consider this portion of the superior court's decree particularly appropriate. We, therefore, affirm the superior court's decree as it pertains to the custody of appellant's minor son. ¹⁵

In his findings of fact the trial judge found that an incompatibility of temperament existed between the parties ¹⁶ and entered his decree of divorce upon this ground. Appellant contends that the superior court's finding of an existing incompatibility of temperament was clearly erroneous. Upon review of the pertinent portions of the record, we hold that the finding of incompatibility was not clearly erroneous. In reaching this conclusion, we adopt the definition of incompatibility of temperament which was formulated by the Third Circuit in Burch v. Burch. ¹⁷ There the court said:

We conclude that while incompatibility of temperament in the Virgin Islands Divorce Law does not refer to those petty quarrels and minor bickerings which are but the evidence of that frailty which all humanity is heir to, it unquestionably does refer to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other. * * * (T)he disharmony of the spouses in their common life must be so deep and intense as to be irremediable. It is the legal recognition of the proposition long established in the earlier Danish law of the Islands that if the parties are so mismated that their marriage has in fact ended as the result of their hopeless disagreement and discord the courts should be empowered to terminate it as a matter of law. ¹⁸

We are of the view that there is adequate evidence in the record to support the trial court's finding of incompatibility under the Burch test. Here the record shows that the parties' marriage had in fact ended due to their disagreements and hopeless discord, and that their conflicts were irreconcilable.

Appellant's final point in this appeal is that the trial court erred in considering a report of a child welfare worker in regard to the custody issue. We hold that the trial court's consideration of this report did not constitute error.

In his complant for divorce in this action, appellee indicated that he would request a report from the Department of Health and Welfare, State of Alaska, as to 'what disposition should be made' concerning custody of the child. Appellee thereafter moved, and appellant joined in the request, for a court order calling for such an investigation. On October 26, 1965, the lower court granted the investigatory relief requested by appellee. ¹⁹ On November 15, 1965, a report was furnished to the court by the Department of Health and Welfare. ²⁰ After setting forth the nature of the investigation conducted, the author of the report concluded that both parties were immature and displayed considerable dependency upon the paternal grandparents in matters relating to the child's care. The report also indicated that appellant's care of the child had been 'negligible' due to appellant's fear, and ignorance concerning the mechanics of child care. The report then stated:

As a possible plan at this time, we would recommend that custody not be granted to either parent but to this agency * * *. ²¹

Approximately one year after this report had been furnished to the judge, the trial was held.

At the conclusion of the parties' evidence, the trial judge, in his oral decision, made the following references to the welfare report:

Some suggestion was made that I ought to disregard the welfare report which was made in this case on November 15th of 1965. I don't feel that way. I asked that the welfare report be made, investigation and report, and the fact I asked that that report and investigation be made at the request of the parties as well as on my own. It seems to me that that's one of the things that I should take into consideration here as long as well as everything else that we have heard here. Now it may be that what (appellant's counsel) meant was that report is not up to date. And that, of course, is true; that report was made a year ago, and we have not had a subsequent report. * * * If what he meant was that I shouldn't consider the matter because it was a welfare report and we haven't had the witnesses here testifying. I think he's clearly wrong and I don't intend to follow that.

Appellant argues that the report had not been made part of any hearing, had not been offered into evidence by either party, and the author of the report had not been available for cross-examination. Appellant also asserts, 'There is absolutely no question that the decision of this Court was based entirely and completely and was in full accord with the recommendation of a child welfare worker that neither party had an opportunity to cross-examine.'

We find no merit in appellant's last contention. The trial judge clearly stated that the report was only one of the factors which he considered. The evidence appearing in the record, exclusive of the questioned report, furnished an adequate factual basis for the custodial aspects of the lower court's findings and decree.

As to the last issue, mention should be made of appellant's argument that she was denied a fair trial because the report was used as evidence by the trial court without affording her the right to cross-examine its author. ²² There are decisions in which the trial court's use of an independent welfare report without provision for its formal admission and the cross-examination of its author has been held erroneous. ²³ On the other hand, there is precedent upholding the propriety of the court's consideration of the welfare report on the ground that the objecting party had, earlier in the action, acquiesced in its procurement. ²⁴ Pertinent here is the decision of the Supreme Court of Oregon in Rea v. Rea, ²⁵ where it was said that:

The better-reasoned modern cases tend to support the view that when an independent investigation is made by the court * * * such action * * * being acquiesced in by the parties, the consideration by the court of such investigation will not constitute reversible error even though the report is not incorporated in the record.

In the case at bar, the court accorded a full hearing to the parties in open court. Witnesses pro and con testified before the independent investigation was proposed or made. There is nothing to indicate that the actual decision was delegated to the investigator.

We have already alluded to our conclusion that there was substantial evidence aside from the report to sustain the court's decree, and that the trial...