Rea v. Rea ( 1952 )

LATOURETTE, J.,

specially concurring.

I am in accord with the result reached in the prevailing opinion, but not with the reasoning by which the result is reached. By the opinion, this court refuses to try the issue of the custody of the minor child de novo. This refusal is based, as I read the opinion, on the proposition that the attorneys in the trial court agreed to the court’s suggestion that it make “an independent investigation and have a report from a disinterested party with respect to the child.”, and, since the trial court made an independent investigation and had a report from one of its attaches, and, since neither such report nor the evidence upon which it is based is in the record, we do not have all of the evidence that was considered by the court before us, and, therefore, we cannot hear the matter anew.

The above view is contrary to that reached by this court in at least three cases. The first is Bestel v. Bestel, 153 Or 100, 44 P2d 1078, 53 P2d 525. There, the trial judge, through his court officials, made an independent investigation in a child custody case arising out of a divorce proceeding. We said, in reversing:

“ * * * What information was conveyed to Judge Gilbert by the members of his staff is not disclosed by the record, but the orders made by him and later entered in the case show that he not only received but that he acted upon the information secretly conveyed to him by the members of his staff. Such a course of procedure is unknown to our law. It is contrary to the very essence of the administration of law in any judicial proceeding. Judge Gilbert had no more right or authority to consult with or be advised by any member of his so-called staff in his decision of this case than would the judge of any court have the right and authority to go outside the record and be governed by communications privately conveyed to him in respect to matters pending before him for decision. Section 10 of article I of the constitution of this state provides:

“ ‘No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.’ ”

In Zachary v. Zachary, 155 Or 346, 350, 63 P2d 1080, the trial court made an independent investigation. We said:

“ * * * The parties stipulated that the court might make an independent investigation and take such investigation into consideration in passing upon the motion. This, the court evidently did. The several affidavits in support of the countermotion, if the court believed them, abundantly support the court’s action in the matter independent of the investigation.”

We tried the case de novo and affirmed, giving due consideration to the legal record evidence.

Nelson v. Nelson, 180 Or 275, 282, 284, 176 P2d 648, involved child custody. In that case, speaking through Mr. Justice Baii^ey, we said:

“In providing for the future care and custody of minor children, the court is vested with large discretion, but such discretion is judicial and must be based upon evidence introduced in the case. His decision in the matter is subject to review in this court * * *.

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“To what extent the court’s decision as to the future custody of the child is based upon the secret report of its investigators is not disclosed by the record. That it is based, at least partly, on that report is made clear by the recitals in the decree. Therefore the decree as to his future custody is erroneous, and it should be reversed and the cause remanded to the circuit court for a determination of his future custody according to recognized legal principles.”

The prevailing opinion does not expressly overrule the three above mentioned cases but has this to say of the Nelson case:

“If, by the language quoted from the Nelson case, this court, intended to indicate that trial courts, in the exercise of their own judicial discretion, cannot consider the results of an independent investigation made pursuant to stipulation, then the case must, to that extent, be overruled.”

It would appear that, since Chief Justice Brand joined in the opinion in the Nelson case, he should know what this court intended to indicate in such case. It is obvious to me, from a reading of the opinion in that case, that it clearly holds that this court does not condone an independent investigation. We remanded the case for retrial on legal evidence. The majority endeavors to differentiate the three cases above mentioned from the present case. Of course, the facts are different but the principle is the same. Thus, it appears that the law of this state for the last 15 years has been well settled that a child custody case cannot be decided on evidence dehors the record. It is, of course, presumed that attorneys who enter into stipulations such as we have in this case are fully aware of such holding. It is apparent, therefore, that when parties, through their attorneys, enter into such a stipulation, it is merely to be considered as being helpful to the court in arriving at a proper apprisal of the legally introduced evidence. It would be tantamount to a jury’s view of the premises.

If parties to a divorce proceeding want to stipulate away their own rights, that is one matter, but to enter into a binding agreement affecting the future welfare of the child is another. We have often said that the child is a ward of the court, and that the public is vitally interested in its welfare, and, for this reason, we should surround him with every protection and safeguard known to the law.

There is no question but that in some instances the trial court may gain an added picture of the situation from an extrajudicial investigation, hut there may be instances in which the opinions of the investigators are based on hearsay, prejudice and many other things. The legislature had laid down rules regarding the conduct of trials, and we should abide by them. If a change is to be made, it should be made by the legislature and not. by the court. We should not engraft into the law novel ideas that strike at the very foundation of our judicial system. To deny the right of appeal in the instant case is an emasculation of the judicial process.

There is no need in this case to deny the right of appeal when we have a full record of what transpired at the trial. That record is sufficient to enable us to properly decide this case. I am of the opinion that the evidence before us warranted the decree of the trial court in awarding the custody of the child to the mother. For this reason, I concur in the result. This is in keeping with the rule laid down in the Zachary case.