Welch v. Welch, WD
| Decision Date | 30 March 1982 |
| Docket Number | No. WD,WD |
| Citation | 633 S.W.2d 447 |
| Parties | Gwen A. WELCH, Appellant, v. Ronald Collin WELCH, Respondent. 32084. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, John Edward Cash, Kansas City, for appellant.
Stanley B. Cox, Sedalia, for respondent.
Before CLARK, P. J., and MANFORD and KENNEDY, JJ.
In a contested proceeding to modify a marriage dissolution decree, the court ordered custody of two children transferred from the wife to the husband, and the wife appeals.
The marriage of Gwen and Ronald was terminated by a decree entered in 1978. Custody of the two children born of the marriage was awarded to Gwen. In February 1980, Ronald filed a motion to modify the order of custody and Gwen responded by a motion to increase child support. Successive hearings were conducted on both motions in May and June 1980 and, on the basis of evidence of Gwen's misconduct and neglect of the children, the court ordered custody transferred to Ronald. The custody change necessarily disposed of Gwen's motion as to child support.
The first point advanced by Gwen on this appeal complains that the trial court ordered an investigation pursuant to § 452.390, RSMo 1978, but thereafter frustrated the process by arbitrarily and precipitously insisting on disposition of the case before the results of the investigation could be produced and utilized. Gwen argues that the report of investigation favored her side of the dispute and that she was prejudiced when the court chose to ignore potential evidence germane to the central issue. Some facts relative to the § 452.390 investigation must be recounted.
The motions for transfer of custody and increase in child support first came on for hearing May 15, 1980. Both parties offered the extensive evidence common to such disputes. In an interim disposition, the court granted Ronald temporary visitation, amounting to temporary custody, for a period of six weeks beginning June 9, 1980. A guardian ad litem was appointed for the children and the case was continued for further evidence.
The guardian ad litem moved for an investigation as provided in § 452.390, RSMo 1978 and on May 20, 1980 the court ordered the investigation to include a study of the homes maintained by both parents. Gwen had moved to California with the children in February 1980, and the home study request was therefore forwarded to the California agency. Ronald had lived in Sedalia but because his mobile home had been lost in a tornado, he had moved elsewhere engendering delay in processing the home study.
The next record of proceedings in the case is the report of a hearing conducted August 12, 1980. Both parties appeared and offered substantial evidence, much of which duplicated the testimony adduced in May. A representative of the Division of Family Services was called as a witness. He testified that the report of an investigation of Gwen's home made by California authorities at his request had been received the previous day. Copies had been furnished to counsel and to the guardian. No report of investigation as to Ronald's home had been made because of the change in his residence to another county. It was indicated that report would be completed in four to six weeks. With this information at hand, the court made the following observations:
Thereafter Gwen's attorney offered the California home study report in evidence. Ronald objected on the ground the report was hearsay. The court stated that ruling on the offer would be reserved pending an opportunity for the court to examine the statute. At the close of the evidence, the court took the case under advisement. A written opinion was thereafter filed which bore the date of August 12, 1980 but was evidently delivered to the parties later. No ruling was made as to admission of the California home study report in evidence and the trial court's findings make no mention of the report or its contents.
Beyond question, the California report should have been excluded if, as the objection postulated, the content was hearsay. In re Marriage of Cavitt, 564 S.W.2d 53, 56 (Mo.App.1978). In fact, the statute itself anticipates that the investigative report will not constitute evidence because provision is there made for the investigator and persons consulted to be called as witnesses. The rationale for excluding a report offered to prove the facts recounted therein lies in fundamental entitlements to fair trial and due process which...
To continue reading
Request your trial
-
Eagleburger v. Emerson Elec. Co., 16042
...to furnish a record containing information sufficient for the appellate court to determine the questions on appeal. Welch v. Welch, 633 S.W.2d 447, 450 (Mo.App.1982); Lewis v. Columbia Mutual Insurance Co., 588 S.W.2d 161, 162 In Welch, 633 S.W.2d 447, the appellant claimed a "home study re......
-
White v. American Republic Ins. Co., 16719
...submission. Since the trial court never ruled on defendant's objections, it is assumed the objections were overruled. Welch v. Welch, 633 S.W.2d 447, 449 (Mo.App.1982). The admission of, and consideration of, Dr. Vanderbroek's testimony was prejudicially erroneous because the only foundatio......
- Franklin v. State
-
Vandever v. Junior College Dist. of Metropolitan Kansas City
...evidence is in the record for consideration the same as other evidence; the assumption is the objection is overruled. Welch v. Welch, 633 S.W.2d 447, 449 (Mo.App.1982). The same principle applies to District's motion. As was stated in regard to post-trial motions in Bennett v. North Brighto......