Marriage of Russo, In re

• Decision Date: 11 November 1971
• Citation: 21 Cal.App.3d 72,98 Cal.Rptr. 501
• Court: California Court of Appeals Court of Appeals
• Parties: Grace I. RUSSO, Plaintiff and Appellant, v. Robert M. RUSSO, Defendant and Respondent. Civ. 28808.

Page 501

98 Cal.Rptr. 501

21 Cal.App.3d 72

Grace I. RUSSO, Plaintiff and Appellant, v. Robert M. RUSSO, Defendant and Respondent.

Civ. 28808.

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

Nov. 11, 1971.

Jack Siedman, San Francisco, for plaintiff and appellant.

Molly H. Minudri, San Francisco, for defendant and respondent.

SIMS, Justice.

Appellant, the mother of a daughter born October 14, 1964, who was awarded physical custody of her child by an interlocutory decree of divorce on August 12, 1968, has appealed from an order made and entered March 12, 1970 which granted respondent-father's motion for modification of child custody, and changed the physical custody of the daughter from the mother to the father, with reasonable visitation rights to the mother. She contends that the order changing custody of the minor child must be reversed since it is totally unsupported by the evidence presented to the trial court. As a minor premise she claims that there is no substantial evidence to show that there has been a change in the conditions existing at the time of the original order which would justify modification of that order. On the other hand, the father asserts that the court properly exercised its discretion in providing for custody which was in the best interests of the child.

The record reflects that the parties were married May 19, 1962. Their daughter was born October 14, 1964. The parties separated February 15, 1968, and by agreement the daughter was left in the physical custody of the mother. Although the defendant defaulted in the divorce proceeding, the interlocutory decree was endorsed on his behalf 'Approved as to form and content' by his present attorney. ¹ The interlocutory decree provided that legal custody of the daughter was awarded to the parties jointly with physical custody to the mother. The father's visitation rights and his obligation to pay $100 per month and furnish health care for his daughter were set forth in detail. A final decree, incorporating the terms of the interlocutory decree by reference, was entered at the request of the wife on March 24, 1969.

The current proceedings were commenced by an order to show cause, issued upon the father's declaration, returnable February 3, 1970. On that date the parties executed a 'Stipulation Re Domestic Relations Investigation' which is discussed below, and the court made its order for such an investigation. A report dated March 4, 1970 was returned to the court, and on March 10, 1970 the matter came on for hearing. Testimony was elicited from the father, the maternal grandmother, the mother, and a maternal uncle. On March 12, 1970 a minute order was filed and entered reading as follows: 'Respondent's motion for modification of child custody having been heretofore submitted, it is hereby ordered: Physical custody of minor child, Deborah A. Russo, is changed from petitioner to respondent with reasonable visitation rights to petitioner. Child support terminated.' On March 16, 1970, the mother filed her notice of appeal from the order. On March 24, 1970 the court signed a formal order prepared by the father's attorney and this order was filed and entered the following day. California Rules of Court, rule 2(b), provides in pertinent part, '(2) The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.' Since the minute order did not expressly direct that a further written order be prepared, the minute order itself was the proper subject of appeal, and the written order should be deemed redundant. (See Teichner v. Klassman (1966) 240 Cal.App.2d 514, 525, 49 Cal.Rptr. 742, and Lea v. Strebe (1962) 201 Cal.App.2d 227, 230, 20 Cal.Rptr. 20) ²

I

Before examining the facts it is necessary to determine to what extent the investigation report of a domestic relations commissioner (Code Civ.Proc. § 263 ³) was before the court. The appellant states: '* * * at no time was that report ever put into evidence by either party.' She, therefore, limits her discussion of the contents of the report to such extracts as were read into the record by the trial judge or either party. The stipulation (see fn. 1 above), however, provides in part: '* * * The original of said report shall be filed with the Clerk of the Domestic Relations Department as an exhibit in the case and shall thereupon be deemed admitted in evidence for the purpose of any hearing in the above entitled action subject, however, to motion to strike the same or any part thereof, and subject to the right of the Court, or any party, to call said Domestic Relations Investigator, and any person interviewed by her, or otherwise referred to and relied upon in making said report, to testify as a witness as to any matter referred to in said report, and to call such other witnesses or introduce such other evidence as any party may desire.' At the outset of the hearing the court indicated it had read and considered the report of the Domestic Relations Commissioner. There are frequent references to the report, or to matters reported therein during the proceedings in open court. There was no motion to strike all or any part of the report, except a letter which is referred to below, nor was there any request to examine the commissioner. Under these circumstances a report of a commissioner under Code of Civil Procedure, section 263, or a report of a probation officer under Welfare and Institutions Code, section 582 (see also Civ.Code, § 4602), may and should be considered to the extent it contains unchallenged facts. (See Sanchez v. Sanchez (1961) 55 Cal.2d 118, 125, 10 Cal.Rptr. 261, 358 P.2d 533; Long v. Long (1967) 251 Cal.App.2d 732, 735--737, 59 Cal.Rptr. 790; Swain v. Swain (1967) 250 Cal.App.2d 1, 7--8, 58 Cal.Rptr. 83; Dahl v. Dahl (1965) 237 Cal.App.2d 407, 412--414, 46 Cal.Rptr. 881; and Forslund v. Forslund (1964) 225 Cal.App.2d 476, 494--498, 37 Cal.Rptr. 489. Cf. Fewel v. Fewel (1943) 23 Cal.2d 431, 433--436, 144 P.2d 592; and Washburn v. Washburn (1942) 49 Cal.App.2d 581, 589--591, 122 P.2d 96.)

II

About three years prior to the hearing, while the parties were living together with their daughter, they established their residence in a three-bedroom flat at 263 Carl Street in the Haight-Ashbury district. After they separated, February 15, 1968, a little more than two years before the hearing, the mother continued to reside at that address and was living there at the time of the hearing. During all of this period, with the exception of a few months ending shortly prior to the inception of the present proceedings, the daughter lived with her mother at the Carl Street address. Following the separation the mother secured employment with a bank and during work left her daughter at the home of her godparents in the care of the grandmother of their two children. When the grandmother's age precluded her assuming further responsibility for the extra child, the daughter was placed in the Jefferson Pre-School Day Center. The mother took her there in the morning and picked her up after work. After a year, when the child reached school age, she was transferred to the Jefferson School Day Center to enter kindergarten. The child was disturbed because she found herself with a different group of children and different teachers, and so the mother withdrew her from school about the end of September 1969 and left her with the maternal grandmother until she could make other arrangements.

The father's declaration dated January 10, 1970, alleged that the child had been with the maternal grandmother for a period commencing six months, and terminating two weeks before the declaration was signed, or from July 10, 1969 to December 27, 1969. His testimony indicates that she was removed from the grandmother's home shortly after Thanksgiving. The mother stated that she took the child back to her home in the middle of December. A statement in the domestic relations investigation report, echoed at the hearing by the father's attorney, that the mother and daughter, or at least the child, lived with the maternal grandmother from the time her parents separated until she was last removed, is not sustained by the record. Since the statement in the report can only be based on hearsay, it should be disregarded. (See Sanchez v. Sanchez, supra, 55 Cal.2d 118, 125, 10 Cal.Rptr. 261, 358 P.2d 533; and Long v. Long, supra, 251 Cal.App.2d 732, 736, 59 Cal.Rptr. 790; but cf. Dahl v. Dahl, supra, 237 Cal.App.2d 407, 413, 46 Cal.Rptr. 881; and Forslund v. Forslund, supra, 225 Cal.App.2d 476, 498, 37 Cal.Rptr. 489.) Moreover, both the father and the maternal grandmother were available to contradict the mother's testimony concerning the custody of the child prior to September 1969, and neither was called to do so. In fact the grandmother corroborated her daughter when she testified, 'Until November of last year she (the child) could not have a better mother, and when I say a better mother I am talking about Debbie Ann Russo. She had a wonderful home.' She also stated that she gave up the child to the mother on December 16.

The mother testified that it was necessary to leave her daughter with the grandmother over night because her parents' home was near Daly City and she was working at 6th and Market, and did not have sufficient time before or after work to deliver or pick up her child if she kept the girl at home. The mother testified that she was looking for other arrangements, preferably another child care center, but was unable to locate any until she found a friend in her neighborhood who would care for the child during the day.

It was during this period that friction first developed. In his declaration the father alleged: 'That in November 1969, respondent was...