Fuhrman v. Fuhrman

• Decision Date: 26 May 1977
• Docket Number: No. 9317,9317
• Citation: 254 N.W.2d 97
• Parties: Kathleen A. FUHRMAN, Plaintiff and Appellant, v. Darrell B. FUHRMAN, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 97

254 N.W.2d 97

Kathleen A. FUHRMAN, Plaintiff and Appellant, v. Darrell B. FUHRMAN, Defendant and Appellee.

Civ. No. 9317.

Supreme Court of North Dakota.

May 26, 1977.

Syllabus by the Court

1. Trial judges in nonjury cases ordinarily should admit all evidence which is not clearly inadmissible.

2. The introduction of allegedly inadmissible evidence in a nonjury case rarely will be reversible error unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

3. A report of a social worker which includes statements of persons other than the social worker, not in court and not under oath, is hearsay.

4. The admission of inadmissible hearsay evidence which induced the court to make an essential finding it would not otherwise have made is reversible error.

5. A court has broad discretion in limiting the number of witnesses.

6. It is an abuse of discretion to limit the number of witnesses allowed to rebut hearsay evidence when that evidence had been received on the supposition that it could be rebutted.

7. Litigants in civil nonjury cases have a right to have their attorneys make a final argument.

8. The right to a final argument in civil nonjury cases may be limited as to time and content, but may not be totally denied.

9. The right to a final argument in civil nonjury cases may be waived.

Daniel J. Chapman, Bismarck, for plaintiff and appellant.

Richard B. Baer, Christensen, Baer & Thompson, Bismarck, for defendant and appellee.

VOGEL, Justice.

This is an appeal from a judgment in a divorce case. The district court granted a divorce to both parties on the ground of irreconcilable differences. After two hearings, at one of which a written report of a social worker containing hearsay information from third parties was received in evidence, the court ordered that the children of the parties should reside in the family home, and that the parents should alternate, month by month, in residing with them and having custody of them. (This latter order was stayed pending the outcome of the appeal. The children are in the custody of the wife.)

The wife appeals, claiming reversible error in four respects: (1) the admission into evidence, over objection, of hearsay matter in the report of the social worker; (2) in ordering the custody to be changed monthly; (3) in limiting each party to two witnesses to rebut the report of the social worker; and (4) in denying the attorneys for the parties an opportunity to make final arguments to the court. We reverse and remand because of the cumulative effect of several errors, some of which would be insufficient, standing alone, to require reversal.

I

After the district judge had heard the evidence of the parties as to grounds for divorce, he announced that a divorce would be granted. The attorney for the wife suggested a home study, and the district judge stated that he had planned to order such a study to be made before ruling on custody and child support. About three weeks after the first hearing was terminated, the district court administrator asked the office of the juvenile supervisor to "investigate the home of the children involved."

Subsequently, a report was prepared and submitted to the court. The gist of the report apparently was communicated orally to the attorneys for the parties about a week before the second hearing, but they first saw a copy of the report when the trial was resumed in court. The report showed that the investigator had interviewed three persons the president of the church attended by the parties, a psychologist, and a psychiatrist who had counseled the parties. Incidentally, the wife had been much more regular in attendance at such counseling sessions than the husband.

The report, without attributing the information to any particular person, includes such statements as, " . . . both parents want the children to side with them"; "The Fuhrmans have tried to get the congregation and President to take sides"; and "From information received, it seems Mr. Fuhrman did much of the home and child care while living at home." It also contains statements attributed to each of the three informants, and other statements which may be conclusions of the social worker or may be paraphrases of statements made by one or more of the three persons interviewed.

When the report was first offered in evidence, the attorney for the wife objected vigorously on the ground of hearsay, stating that the social worker could give her own opinion but should not be allowed to testify, or report in writing to be put in evidence, as to what she was told by others. He also objected that the original order was to investigate the home environment only, not interview other persons. The court expressed some doubt as to the admissibility of the report, but ruled that the witness would be allowed to testify as to conversations " . . . because, as I understand it, the persons concerning whom she has written here are residents of the community and are available for cross-examination, . . . "

The attorney for the wife again objected to the report later on, for lack of foundation and on the ground of hearsay. The objections were overruled, the report was received, and the social worker was offered "for cross-examination."

We believe that reversible error was committed in admitting the hearsay as substantive evidence, particularly when considered in connection with other errors described below.

The hearsay evidence as to the statements of other persons, not in court and not under oath, was admitted as substantive evidence. It was not offered or received solely as the basis for the opinion of the witness. See Minot Sand & Gravel Co. v. Hjelle, 231 N.W.2d 716, 728-729 (N.D.1975). Under the newly adopted North Dakota Rules of Evidence, the evidence is inadmissible over objection regardless of the availability of the absent declarants. See Rules 801, 802, and especially 803, N.D.R.Ev.

In ruling that the admission of the hearsay was error, we are fully aware of what we have come to call the "rule" of Schuh v. Allery, 210 N.W.2d 96 (N.D.1973), in which we held that trial judges, in nonjury cases, ordinarily should admit all evidence which is not clearly inadmissible, and that the introduction of allegedly inadmissible evidence in a nonjury case rarely will be reversible error. In Schuh v. Allery, 210 N.W.2d at 100, and in Matson v. Matson, 226 N.W.2d 659, 665 (N.D.1975), we quoted from Builders Steel Co. v. Commissioner of Internal Revenue, 179 F.2d 377, 379 (8th Cir.1950), as follows:

"In the trial of a nonjury case, it is virtually impossible for a trial judge to commit reversible error by receiving incompetent evidence, whether objected to or not. An appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. . . . On the other hand, a trial judge who, in the trial of a nonjury case, attempts to make strict rulings on the admissibility of evidence, can easily get his decision reversed by excluding evidence which is objected to, but which, on review, the appellate court believes should have been admitted."

In the case before us we have regretfully concluded that "it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made." That essential finding is that the husband was a fit and proper person to have custody of the children on alternate months. In the absence of the hearsay portion of the report of the social worker, and her hearsay testimony as to her conversations with other persons, we believe the evidence would have been insufficient to authorize the award of split custody to the husband. Aside from the testimony of the husband himself, he offered no evidence of his fitness for custody, while the wife, in addition to her own testimony, offered evidence of friends of the family who were well acquainted with both parties socially, unlike the president of the church, one of the persons interviewed by the social worker. There was evidence of the husband's violent temper and assaultive behavior toward the wife but not the children. Where there also was evidence that the husband was good to the children, we believe the split custody would not have been justified if the hearsay had been excluded. ¹

We are referred to two cases which, it is asserted, allow the reports of social workers which contain hearsay to be received in evidence. These cases are Silseth v. Levang, 214 N.W.2d 361 (N.D.1974), and Matson v. Matson, supra. We believe they are not in point. In Silseth, the report of a social worker was received, but this court said:

"There was nothing improper in the district court's use of the investigation report . . . because both of the parties involved had agreed that such a report could be made . . . and used by the district court." 214 N.W.2d at 364.

There was no such consent in the case before us.

In Matson, the opinion indicates that reports were used, but does not specifically discuss their admissibility. The opinion quotes at length from Schuh v. Allery, supra, to the effect that evidence not clearly inadmissible should be admitted in court cases. It does not, however, discuss the question of whether the competent evidence, excluding the hearsay, was insufficient to support the judgment or whether it affirmatively appeared that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. Thus neither of these cases answers the problem we have in the case before us. We resolve that problem by holding that the hearsay evidence was clearly inadmissible as...