Saturnini v. Saturnini, 38170

• Decision Date: 28 July 1961
• Docket Number: No. 38170,38170
• Citation: Saturnini v. Saturnini, 260 Minn. 494, 110 N.W.2d 480 (Minn. 1961)
• Court: Minnesota Supreme Court
• Parties: Jerome P. SATURNINI, Appellant, v. Irene J. SATURNINI, Respondent.

Page 480

110 N.W.2d 480

260 Minn. 494

Jerome P. SATURNINI, Appellant, v.Irene J. SATURNINI, Respondent.

No. 38170.

Supreme Court of Minnesota.

July 28, 1961.

Syllabus by the Court

1.On a hearing to modify a judgment of divorce so as to increase the allowance of support for the minor children of the parties, whether oral testimony should have been received rested in the sound discretion of the trial court.

2.Where the responding party failed to submit an affidavit in response to the affidavit of the moving party, the trial court did not abuse its discretion in refusing to permit the responding party to cross-examine the moving party as to the contents of her affidavit.

3.Held, the order modifying the decree was sufficiently supported by the evidence.

Mogren & Lindholm, St. Paul, for appellant.

Nahurski & Cyptar and Robert P. Tolaas, St. Paul, for respondent.

DELL, Chief Justice.

This is an appeal from an order modifying the judgment and decree of divorce by increasing the allowance of permanent support and maintenance for the minor children of the parties.

Under the judgment and decree of divorce entered on March 14, 1949, plaintiff, in accordance with a stipulation executed by the parties and adopted by the court, was ordered to pay to the defendant the sum of $5 per week for the support and maintenance of each of the three minor children of the parties.On December 26, 1959, plaintiff was served with a notice of motion, motion, order to show cause, and affidavit, by which the defendant sought, among other things, to increase the allowance of support to $25 a week for each of the minor children.The affidavit executed by the defendant alleged that she entered into the foregoing stipulation in ignorance and without the advice of counsel; that while the plaintiff had only been working spasmodically at the time the stipulation was entered into and the divorce granted, he was now regularly employed and earning in excess of $500 per month; and that the living expenses of the defendant and the children had changed substantially since the original award of child support.The affidavit also set forth an itemization of the monthly expenses of the defendant and the children totaling $445.

The hearing on the motion for modification was held on May 19, 1960, the defendant appearing in person and by her attorney and the plaintiff by his attorney only.According to the settled case ¹the court, upon examination of the defendant's moving papers, inquired of plaintiff's counsel whether there was any affidavit to be offered in opposition to the defendant's motion and supporting affidavit.The court was advised that there was none, but plaintiff's attorney requested on two occasions that he be permitted to examine the defendant as to the competency of her affidavit.The requests were denied on the ground that no responsive affidavit had been filed.The court thereupon increased the child support allowances to $25 per week for each of the children then in the defendant's custody.

1.Plaintiff contends that the motion for modification of child support allowances could not, in the absence of waiver, be determined solely upon the defendant's affidavit and that he was entitled to the right of cross-examination.

Although made under oath, an affidavit is ordinarily not considered competent evidence because of the lack of opportunity to cross-examine the affiant.In some limited situations, however, affidavits have been allowed in evidence where the danger inherent in permitting the establishment of facts by hearsay is deemed negligible or substantially outweighed by the necessity for expeditious procedure.²For example, it has long been the rule that in determining preliminary motions or motions made during the course of trial, oral testimony should not normally be received.³In any event, the use of oral testimony upon the hearing of a motion has been said to be discretionary with the trial court and not a matter of right.⁴As pointed out in Strom v. Montana Cent. Ry. Co., 81 Minn. 346, 349, 84 N.W. 46, 47:

'A party is not entitled, as matter of right, to have a motion involving an issue of fact heard and tried on the oral testimony of witnesses.Ordinarily no oral testimony should be received on the hearing of a motion, but the trial court, in the exercise of a sound discretion, may permit the trial of an issue of fact, involved in a motion, or oral testimony, as if the issue had been raised by the pleadings, or it may on its own motion direct a reference to ascertain and report the facts.State (ex rel. Burdic) v. Egan, 62 Minn. 280, 64 N.W. 813;G.S.1894, § 5392, subd. 3;14 Am. & Eng. Enc. 148. This discretion of the trial court should be exercised only in exceptional cases; for if parties were permitted, as a matter of course, to have every issue of fact in every action tried on oral testimony, and to require the formalities of a final trial of an action on its merits to be observed, it would result in vexatious and burdensome delays, and in many cases in a miscarriage of justice.On the other hand, the power of the court, in its discretion, in exceptional cases, to receive oral testimony on the hearing of a motion, and to require a party who has made an affidavit in the proceeding to appear for cross-examination, is not only wholesome, but in some cases absolutely essential to prevent the circumvention of justice.'

This practice was embodied in Rule 43.05 of the Rules of Civil Procedure, which provides:

'When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.'

Taken literally, Rule 43.05 authorizes the court, in its discretion, to decide any motion solely upon affidavit, including proceedings to modify support or custody provisions set forth in divorce decrees.⁵We have, however, held, at least by implication, that the rule does not permit such a broad construction.In Thompson v. Thompson, 238 Minn. 41, 47, 55 N.W.2d 329, 332, we held that the failure of the trial court to take oral testimony on a motion to change the custody of minor children was not only an abuse of discretion but deprived the litigants of an absolute right, stating:

'* * * If, in the trial of an action for divorce, the fitness of a parent to have custody of minor children is in issue, no one would contend that such parent could be deprived of the right to cross-examine the witnesses upon whose testimony the court was to base its findings.It is difficult to see why a parent should be deprived of the same right, where the same question is at issue, on a motion to change the custody after the entry of the original divorce decree.'⁶

In Stefonick v. Stefonick, 118 Mont. 528, 167 P.2d 867, 868, which involved a petition for attorney's fees and costs on appeal, the court held that despite a...