Rea v. Rea

Decision Date18 June 1952
Citation245 P.2d 884,195 Or. 252,35 A.L.R.2d 612
Parties, 35 A.L.R.2d 612 REA v. REA.
CourtOregon Supreme Court

Joseph M. Devers, Jr., of Stayton, argued the cause, on the brief Bell & Devers, of Stayton, for appellant.

Joe F. Walker, of Rainier, argued the cause and filed a brief for respondent.


BRAND, Chief Justice.

This case comes up on a motion for change of custody of a minor child. The parties were divorced in 1946 at the suit of the plaintiff. The defendant was awarded custody of the child of the parties and the plaintiff father was directed to pay $40 a month for its support. Plaintiff now seeks custody of the child and relief from the order to pay support money. The cause was tried and motion for modification of the original decree was denied. The plaintiff appeals.

The record presents one question of considerable public importance. At the close of the hearing, at which witnesses for both parties testified, the following transpired:

'The Court: * * * I should like to ask both parties and also counsel if they have any objection to the court making an independent investigation. I feel a great deal of responsibility in having to dispose of a case such as this because there is no adequate substitute the state or the court can provide for children to take the place and which they are entitled to, a home with conventional parents and love and affection. I feel that I might be able to do a little better and be better qualified if I made an independent investigation and have a report from a disinterested party with respect to the child.

'Mr. Devers: Petitioner and plaintiff has no objection whatsoever.

'Mr. Walker: If the Court please, defendant has no objection whatsoever and in support of that I would like to urge the court to particularly talk to the child.

'The Court: If [with?] that in the record, I will continue this until I am ready to dispose of it.'

The trial in open court ended on 22 November 1950. On 9 March 1951 the court made and filed a temporary order which reads in part as follows:

'* * * After carefully considering all of the evidence introduced, including the present circumstances under which each of the parents of this child are now living, this court is of the opinion that the future welfare of the child will be best served if he is returned to the care and custody of his mother, in accordance with the original decree herein. The motion to modify such decree will therefore be denied.'

The so-called temporary order was in the form of a letter to counsel, but it was filed in the records of the case by order of the court. Formal order denying the plaintiff's petition was made a few days later. In view of the deliberate statement of the court as to its intention to make independent investigation and to have a 'report from a disinterested party with respect to the child', and in view of the statement in the temporary order more than three months later to the effect that the court had considered the 'present circumstances under which each of the parents * * * are now living', we are compelled to assume that the court made and caused to be made the independent investigation. There is nothing in the record to indicate what investigation was made or what facts were disclosed thereby. The plaintiff takes exception to this procedure and cites authority in apparent support of his position. The question for decision may be briefly stated thus: The trial court, with the express consent of both parties or with their express waiver of objection, personally makes, and directs others to make, an independent investigation, the results of which do not appear in the record on appeal. The investigation relates solely to the issue as to the future custody of the child and its welfare. The trial court considers the report and investigation along with the testimony received at the trial. Under these circumstances, what is the duty of this court when the order for custody is brought here on appeal by one who consented that the investigation be made, or who expressly waived objection thereto?

Before considering the decisions, it should be stated that our inquiry is strictly limited to cases in which the independent investigation relates to the single question of child custody--to the determination by the court of the welfare of a child who is a ward of the court. The issue presents in striking form, one of the many judicial problems arising when competing social interests, both valid when considered alone, appear to be in conflict. On the one hand we find the time-honored rule, supported by constitutional mandate, that no court shall be secret and that justice shall be administered openly. The right to confront and cross-examine witnesses lies at the base of our judicial system. The existence of a back door to the court room, and thus, to the judge's private ear, is abhorrent to our ideas of justice. On the other hand, in recent years we have witnessed great changes in the attitude of society and of public officials in dealing with the thousands of children of broken homes who are wards of the state. Throughout the nation, men and women are being trained in the social sciences, and prepared for work in public employment and in fields authorized by statute, to the end that the state, as parens patriae may better perform the difficult task of determining what is for the best interest of the unfortunate child. Among these groups are the parole and probation officers and trained case workers who are attached as aides to domestic relations courts. Examples may be drawn from the statutes in most of the states. In this state courts are authorized to appoint probation officers whose duties are to make investigation when any child is brought before the court and 'to furnish the court such information and assistance as the court or judge may require * * *.' O.C.L.A. § 93-606. All assistants employed in courts of domestic relations must be persons whose appointment by the judge has been approved by the child welfare commission. O.C.L.A. § 93-507. It appears to have become common practice for judges in custody cases to make use of these modern facilities in a highly informal way, quite inconsistent with the procedure in strictly judicial inquiries on other matters. We know also of the practice of many judges who, for sound reasons, are reluctant to require an infant to testify in open court for or against one parent in a divorce case. With the consent of both parties, expressed in open court, judges have invited the child into chambers and in quiet conversations have secured valuable insight into the child's attitude, whether of fear or of affection, toward a parent. It must be conceded that such informal procedure is likely to shed more light upon the issue than would result from subjecting the child to examination and cross-examination (perhaps after coaching) in open court. If such action is illegal, then many trial judges, some of them now on this court, have erred. The problem is not a simple one and is distinguishable from all other judicial procedures. Although, in form, the issue is raised between plaintiff and defendant as adversaries, we have frequently pointed out that the claims of the divorced husband and wife are subordinate to the welfare of the child who is the subject of the controversy and is neither plaintiff nor defendant. In view of the fine service being impartially performed by child welfare agencies and of the benefits which are sometimes derived by personal interviews by a judge with a ward of his court, we should be very sure before we brand all such service as illegal. This much, however, service as illegal. This much, however, is fundamental. Any person who desires to stand upon his strict legal rights, and to preserve his right of appeal to this court, may insist that no fact should be brought to the attention of the trial court and that no influence should be exerted upon it, except in the manner of the common law, by testimony and argument in open court, with the right accorded to both parties to testify, to produce witnesses, and to confront, cross-examine or contradict adverse witnesses. But that is not the case at bar. Here we have express consent, or at least express waiver, of any objection to the course pursued by the court. We turn to the authorities.

A similar, but not identical question, was considered in Nelson v. Nelson, 180 Or. 275, 176 P.2d 648, 649. In that case the plaintiff sued his wife for divorce and for custody of the minor child. On 6 November 1944, the day set for the trial, the parties stipulated as follows:

'* * * the court is authorized to have investigation made of the conditions in the present home of plaintiff and defendant for the purpose of ascertaining which party is entitled to the custody and control of James Craig Nelson, minor child of the parties hereto. Based upon the report to be returned to the judge of this court by his investigators, the court shall award the care, custody and control of said minor child as he deems proper and equitable. In the event that the care, custody and control of said minor child is awarded to the defendant, he shall make such award as he may deem equitable for the support of said minor child, and shall be authorized to make such regulations as to visitation as he may deem proper.'

Thereupon the trial was postponed. On 17 January 1945, and more than nine months before any evidence was introduced in the case, the trial court made an order reciting the stipulation and continuing in part as follows:

'* * * and such an investigation having been made and a report filed, recommending that the custody of said child be given to the plaintiff with the actual custody and care with the mother of the plaintiff, and the court being fully advised,

'It Is Ordered that the plaintiff be, and he hereby is, awarded the custody...

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