Bowler v. Bowler

• Decision Date: 01 June 1957
• Docket Number: No. 26,26
• Parties: Eleanore BOWLER, Plaintiff and Appellant, v. William C. BOWLER, Defendant and Appellee. ,
• Court: Michigan Supreme Court

Page 505

88 N.W.2d 505

351 Mich. 398

Eleanore BOWLER, Plaintiff and Appellant, v. William C. BOWLER, Defendant and Appellee.

No. 26, June term, 1957.

Supreme Court of Michigan.

March 5, 1958.

Henry Thumin, Detroit, Meyer Weisenfeld, Detroit, of counsel, for appellant.

Anthony G. Jeffries, Detroit, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

This is a bitter controversy between a husband and his wife over the custody of their 3 minor children following divorce. The wife obtained both divorce and custody of the children in March, 1955. The grounds for the divorce were extreme and repeated cruelty, and the decree was obtained by plaintiff after the husband withdrew his answer and cross bill and his objections to the award of legal custody of the children to his wife.

On October 12, 1955, however, the husband initiated the present proceeding by a petition to modify the decree of divorce, alleging 1) that his wife was violating the decree by denying his visitation rights; and 2) that his wife was 'mentally deranged and unstable and that she is in urgent need of psychiatric treatment.'

This petition was referred by the circuit judge to the friend of the court for investigation and for the taking of testimony. A previous order to show cause directed to the plaintiff for her alleged refusal to allow the defendant the visitation rights called for by the decree was likewise referred to the friend of the court.

Subsequently a referee of the friend of the court's office conducted a hearing on these issues. He took testimony from 4 family acquaintances bearing on the wife's fitness for custody of her children, and received in evidence by consent of both parties diagnostic letters from 3 psychiatrists who had examined the wife. Two of these letters expressed opinions that the wife was mentally ill. The other found her 'competent, very intelligent, * * * reasonable, and * * * a very good mother to her children.'

Following the referee's hearing referred to above, the friend of the court presented to the circuit judge the following recommendation:

'Recommendation

'The husband withdrew his objection to the award of legal custody of the minor children to the wife prior to the entry of the decree. His testimony clearly shows that he has no knowledge of any of the wife's activities since that time. There is also no affirmative evidence of improper care of the children since the entry of the decree other than in relation to the question of visitation. The psychiatric reports all show that there is some question in relation to the wife's mental condition. However, the doctors involved have disagreed as to the severity of the situation and the necessary treatment. Counsel have submitted the case on the basis of the letters of the physicians, and the referee has not had the opportunity of hearing their testimony.

'No defense has been submitted to the order to show cause, and the wife has agreed to comply with the terms of the decree regarding visitation in the future.

'It is recommended that the plaintiff wife be held to be in contempt of court for violation of the decree regarding visitation and placed on probation to comply with the terms of the decree.

'It is further recommended that the petition of the defendant husband for custody of the minor children be denied without prejudice to its reinstatement if the wife violates the order of probation.

'It is further recommended that periodic inspection of the wife's home be made by the friend of the court and that the wife be restrained from removing the children from the jurisdiction of the court until the further order of the court.'

Petitioner in these proceedings, the defendant father, objected to the recommendation of the friend of the court, and a hearing was held before the circuit judge. This record discloses that at that hearing the complete report of the friend of the court, including copies of the 3 letters from the 3 psychiatrists referred to, was received in evidence apparently without objection, and counsel for both parties were allowed oral argument.

The record does not disclose, however, that a word of testimony was taken before the circuit judge, or that he saw or heard from any 1 of the 5 persons whose fate he was deciding.

At the conclusion of oral argument, the circuit judge entered an order for modification of the divorce decree. The relevant portions of this decree are quoted below:

'The petition of the defendant husband to modify the decree so as to award him custody of the 3 minor children, and also an order to show cause against the plaintiff wife alleging violation of the decree as to visitation privileges, coming on for hearing, and the court being fully apprised by a comprehensive report filed by Hazen E. Kunz, friend of the court, by Archibald W. Brighton, friend of the court referee, dated February 7, 1956, and by argument in open court by counsel for the respective parties, and after due consideration thereof, the court finds that the plaintiff, Eleanore Bowler, did refuse and prevent the defendant William C. Bowler, from visiting with his 3 children on September 4th, 11th, 18th, 23d, and on October 9, 1955, in direct violation of the decree of this court, and this court does hereby find and hold the said plaintiff, Eleanore Bowler, to be in contempt of court. The court further finds that the plaintiff, Eleanore Bowler, is suffering from a paranoid psychosis which is chronic with active delusions; that she should be institutionalized for care and treatment; and that her insight and judgment are definitely impaired. The court further finds that it is not to the best interest of the 3 minor children to have the plaintiff, Eleanore Bowler, continue to have the care, custody, control and education of the 3 minor children, and that said care, custody control and education should be changed and awarded to the defendant, William C. Bowler, the father, who is in position to provide his 3 minor children with a fine home.'

Plaintiff wife appealed to this Court from the terms of the modification outlined above, alleging that the circuit judge committed manifest error by his finding that plaintiff was suffering from a paranoid psychosis with active delusions, upon inspection of 3 conflicting diagnostic letters from psychiatrists, without the taking of any testimony in open court. Plaintiff wife likewise complains that the modification of the divorce decree, and the overruling of the recommendation of the friend of the court, without the taking of any testimony before the circuit judge, and without plaintiff being given the right to cross-examine the medical witnesses in open court, represented a deprivation of due process.

On an appeal to this Court concerning a decree of divorce, we hear the matter de novo upon the record. But where the circuit judge saw the witnesses and heard the testimony, we give great weight to his findings of fact. Hartka v. Hartka, 346 Mich. 453, 78 N.W.2d 133; Brugel v. Hildebrant, 332 Mich. 475, 52 N.W.2d 190; Donaldson v. Donaldson, 134 Mich. 289, 96 N.W. 448.

Unfortunately, in this instance, we have no record of testimony taken before the circuit judge upon which his findings of fact were based.

It is true that the circuit judge had before him for his assistance a competently-prepared report of the friend of the court. This Court by no means underestimates the importance of careful home investigation, or the timesaving aspect of a friend of the court referee hearing. In many instances, such proceedings succeed in arriving at dispositions satisfactory to both parties and the entry of consent decrees or modifications.

Further, the circuit judge was authorized by statute to have this report prepared, and to consider its recommendations in his ultimate determination of the petition. C.L.1948, § 552.253 (Stat.Ann.1957 Rev. § 25.173). In Metzinger v. Metzinger, 310 Mich. 335, 339, 17 N.W.2d 203, 205, this Court upheld the provisions of this statute:

'Further, defendant was not, by the reference to the friend of the court, deprived of a hearing before the trial court. Instead a full and fair hearing before the court was afforded defendant as to the action the trial court would take in considering the recommendations of the friend of the court and such...