Karim v. Karim

• Decision Date: 26 March 1980
• Docket Number: No. 12604,12604
• Citation: Karim v. Karim, 290 N.W.2d 479 (S.D. 1980)
• Parties: Agnes A. KARIM, Plaintiff and Respondent, v. M. Reza-Ul KARIM, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 479

290 N.W.2d 479

Agnes A. KARIM, Plaintiff and Respondent, v.M. Reza-Ul KARIM, Defendant and Appellant.

No. 12604.

Supreme Court of South Dakota.

Argued Jan. 28, 1980.

Decided March 26, 1980.

Jauane Bleau of East River Legal Services, Vermillion, for plaintiff and respondent.

Daniel R. Fritz of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant.

DUNN, Justice.

Defendant appeals from a judgment denying his petition for modification of an original divorce decree regarding child custody and child support payments.We reverse and remand.

Plaintiff was granted a divorce and awarded custody of the couple's two minor daughters on September 28, 1976.Defendant was ordered to make monthly child support payments and was allowed visitation privileges.In July of 1977, defendant filed a petition for modification of the divorce decree, alleging a substantial and material change in circumstances since the original decree.He alleged that there had been a complete disregard of his child visitation privileges, that there was a constant change of residences by plaintiff and the children, that the children were now attending public rather than parochial schools, that the children's fine art studies were inhibited by their current home environment, and that there was a general ability on his part to provide a better environment for the children.Plaintiff responded with an affidavit alleging that the defendant was not dependable during his child visitation periods, i. e., that he would often leave the children in the care of another, that he degraded the lifestyle of plaintiff and her present husband in the presence of the children and that he harassed her by contacting her employers and the employers of her husband.Finally, she alleged that defendant had improved his financial status and asked for an increase in child support payments.

At trial, defendant admitted that his annual income had increased $250 since the divorce decree.He alleged that plaintiff's present husband had twice disciplined the children by using a belt and had assaulted him on one occasion.Plaintiff denied these allegations.

On its own motion, the court ordered that the plaintiff and the children be psychologically evaluated by the Northeastern Mental Health Center and interviewed by Mr. David Rave, the Social Services Supervisor.Mr. Rave also interviewed defendant.In addition, a Court Services officer interviewed the children at defendant's home during a visitation period.Subsequently, the trial court furnished defendant with copies of the psychological evaluations of the children, but it refused to furnish a copy of plaintiff's psychological report.In a letter dated March 13, 1978, defendant requested permission to interrogate Dr. Hedges, the author of plaintiff's psychological evaluation, and Mr. Rave, the author of the Social Services report, with regard to their evaluations.In a letter dated March 15, 1978, which is included in the record, the court refused to furnish copies of the reports and refused to allow cross-examination of the authors.

The trial court, inter alia, ordered that the children were to remain in plaintiff's custody, directed that the child support payments by defendant be increased by 20% of any gross salary increases received by him, and substantially reduced the child visitation privileges of defendant.This appeal followed.

Initially, we find that the trial court erred in not allowing defendant access to plaintiff's psychological evaluation and the Social Services report.It is apparent from the record that the trial court relied upon these reports in making its findings, but the reports themselves were not made part of the record.In Christensen v. Christensen, 85 S.D. 653, 656, 190 N.W.2d 62, 63(1971), we stated that "if an independent investigation is to be admitted in evidence the requirements of due process must be complied with," citing Annotation, 35 A.L.R.2d 629, 632.Further, we approved the principle that due process allows parties to test these investigative reports through cross- examination.By not permitting defendant to cross-examine the authors of the reports, the...