Peterson v. Peterson

• Decision Date: 07 May 1976
• Docket Number: No. 46138,46138
• Citation: 308 Minn. 297,242 N.W.2d 88
• Parties: Sheila Marie PETERSON, Appellant, v. Arthur Elwood PETERSON, Respondent.
• Court: Minnesota Supreme Court

Page 88

242 N.W.2d 88

308 Minn. 297

Sheila Marie PETERSON, Appellant, v. Arthur Elwood PETERSON, Respondent.

No. 46138.

Supreme Court of Minnesota.

May 7, 1976.

Syllabus by the Court

1. Upon a reference of a contested child-custody motion in proceedings before the Family Court Division of the District Court of Ramsey County, the recommended findings and order of the family court referee are advisory, possessing only prima facie validity. The family court judge to whom such recommended findings and order are submitted has the duty, and retains the ultimate responsibility, to make an informed and independent decision on the custody motion.

2. Proceedings in such family court are special statutory proceedings and only those Rules of Civil Procedure not in conflict and not inconsistent with the authorized use of referees govern the practice and procedure in such court. Rules 53.01 and 53.02, limiting a reference only upon a showing of exceptional necessity, and Rule 53.05(2), requiring acceptance of a referee's findings unless clearly erroneous, are inconsistent with the authorized use of family court referees and therefore do not govern family court proceedings.

3. Written findings by the family court referee and judge which constitute the grounds for decision on a motion to change custody are required to ensure the proper discharge of the responsibility of the family court judge and effective appellate review.

4. A fair review of the evidence adduced before the family court referee in this case could not be undertaken and properly discharged by the family court judge without a transcript of the testimony of the many witnesses who testified before the referee.

Connolly & Heffernan and Thomas J. Barrett, St. Paul, for appellant.

Gilbert J. Schlagel, St. Paul, for respondent.

Considered and decided by the court en banc.

ROGOSHESKE, Justice.

This appeal from an order of the Family Court Division of the Ramsey County District Court changing custody of a minor daughter from the mother to the father concerns the proper role and function of the family court judge in determining a contested custody issue after a reference to a family court referee and objections to the referee's recommended findings and order. Two questions are specifically raised: Whether the family court judge may act upon the report of the referee and the objections thereto in the absence of a verbatim transcript of the oral testimony submitted to the referee; and whether findings of fact in support and explanation of both the referee's recommendation and the family court judge's determination should be required. Since we conclude that both the transcript and specific findings of fact are essential to the proper adjudication of child-custody motions by a family court judge, and that the record here fails to demonstrate such a judicial determination, we reverse and remand.

After almost 13 years of marriage, the parties were divorced on March 11, 1971. Pursuant to a stipulation incorporated into the decree, custody of their son, Arthur, born March 3, 1959, and their daughter, Beth, born June 11, 1965, was given to the mother. The father agreed and was ordered to pay as support $12.50 per week per child and additionally to continue monthly payments of about $170 on the mortgage of the family home. The issue of alimony was reserved.

About 2 years later, on May 2, 1972, the mother moved to increase the support payments to $30 per week per child. The father, remarried on December 18, 1971, responded by a motion to amend the decree to grant him custody of the children. Both motions were referred for factfinding and recommendation to a referee by the family court judge. The referee had for his consideration, among other things:

(1) A custody investigation report of the Ramsey County Department of Court Services. The investigation was made pursuant to a stipulated reference May 16, 1972. The report, dated October 16, 1972, recommended that custody be retained in the mother and that support payments be increased to a total of $150 per month.

(2) Hospital records of three hospitalizations of the mother and a report of a psychiatric examination of the mother ordered December 15, 1972, in response to the father's motion. The records and the report, dated October 3, 1973, reflect the fact that the mother had suffered a period of emotional difficulties following the divorce.

(3) Oral testimony heard on February 1, and May 30, 1974, of 12 witnesses, including the mother and father.

(4) Oral arguments of counsel on August 23, 1974.

(5) An interview of the minor children conducted by him on November 1, 1974.

On May 19, 1975, the referee filed his report and recommendation in the form of findings, conclusions, and a proposed order amending the divorce decree to transfer custody of the daughter, now 10 years of age, to the father effective June 14, 1975. The proposed order recited as findings the historical facts of the parties' divorce, the custodial provisions of the decree, the father's remarriage, and only this finding concerning the disputed issue of custody:

'That there has been a change of circumstances which has occurred since the entry of the divorce Decree on March 11, 1971, in that defendant (father) has remarried and has established a stable home which is in the best interest of said minor children.'

Upon these findings, the proposed order stated as conclusions it was 'in the best interest' of the daughter only that her custody be changed to the father. The order then set forth the amendment to the decree and a formal denial of the parties' respective motions in all other respects.

On the same day the referee reported, his recommended findings and proposed order were apparently routinely approved by a Ramsey County District Court judge other than the family court judge. Although, as will later appear no statute or rule of procedure authorizes such routine approval, presumably it was in keeping with an administrative practice designed to relieve the burden of the family court judge and to advance final disposition of those cases where no objections to the referee's proposed order are subsequently filed. The mother, however, pursuant to Rule 53.05(2), Rules of Civil Procedure, filed timely objections to the referee's recommended findings and order in support of her motion to set them aside. A transcript of the testimony before the referee was contemporaneously ordered. Before the transcript was in existence, the family court judge, after hearing arguments of counsel July 3, 1975, denied the motion July 11, 1975, and without making any reference to the findings of the referee or additional independent findings, determined that 'the Order Amending Decree dated May 19th, 1975, shall remain in full force and effect.'

The mother contends that the referee's findings failed to specify sufficient facts to justify the conclusion and that because of the absence of the transcript she was not afforded an opportunity to establish the lack of an evidentiary basis for a change of custody. The father contends that the single finding concerning the father's remarriage is adequate to support the referee's recommendation and, acknowledging the absence of the transcript at the time the family court judge made the determination, that the Department of Court Services' report, the medical reports, and the referee's interview report supplied 'sufficient evidentiary facts' to justify the family court's denial of the mother's challenge to the report and proposed order of the referee.

1. Essential to an understanding of our decision on the specific questions presented is an exposition of our view of the proper role and function of a family court referee and judge upon a reference of a contested custody motion. The critical problem concerns the extent to which a referee's findings are binding upon the family court judge. The governing statutes and rules are not clear and are susceptible of variant interpretation and application.

A Family Court Division of the District Court in both Ramsey and Hennepin Counties was created in 1967 by Minn.St. 484.64. The only reference to referees was in subd. 3 thereof, which authorized the use of 'one or more referees and other personnel to assist' the family court judge. ¹ Although we can find no record disclosing the legislative history prompting the creation of family courts in Ramsey and Hennepin Counties, we surmise that it was the legislature's response to repeated recommendations that judicial dealings with family problems be centralized in a specialized court presided over by judges equipped by training and experience to deal with the sociolegal problems unique to domestic relations and aided by specialized supporting services. ² To implement the creation of the family court division, as authorized by § 484.34 and Rule 83, Rules of Civil Procedure, the Ramsey County District Court adopted special rules relating to the practice and procedure in the family court division. District Courts--Special Rules, Second Judicial District, Rule 17, 27B M.S.A., 1976 pocket part, p. 85. Rule 17, § 1.06, contemplates routine reference of custody hearings to a referee. In recognition that all situations are not covered by the special rules, and in keeping with the district court's authority to adopt rules not in conflict with statutes or the Rules of Civil Procedure, Rule 17, § 1.01, of the special rules provides that the Rules of Civil Procedure shall also apply 'except where in conflict with applicable statutes.'

In contrast to Minn.St. 484.64, subd. 3, expressing no more than an intention that referees may 'assist' the family court judge, Rule 53, Rules of Civil Procedure, deals explicitly with the role and function of a referee. Rules 53.01 permits appointment of a referee only on a case-by-case basis, and Rule 53.02 cautions that a reference 'shall be the exception and not the rule.' Rule 53.02 also provides that in...