Opinion
No. 80-1094.
February 27, 1981.
Appeal from the Circuit Court for Charlotte County, Richard M. Stanley, J.
Robert J. Norton, of Norton Marryott, Punta Gorda, for appellants.
Melissa Jones, of Wotitzky, Wotitzky, Mandell, Batsel Wilkins, Punta Gorda, for appellee Letha Virginia Harter.
Appellants Harold and Mary Neubert appeal the trial court's order which changed custody of three minor children from appellants, the paternal grandparents, to appellee, the natural mother. We affirm.
In July, 1976, the natural parents were granted a divorce and the court awarded custody of the children, then aged 5, 4 and 3, to appellants. The children remained in their grandparents' custody for approximately 4 years until appellees' motion for change of custody was granted in June, 1980.
Appellants argue, inter alia, that the trial judge committed reversible error in examining two witnesses, the children's schoolteachers, in his chambers in the absence of the parties or their counsel. Although we agree that the interviews were improper, we find the error harmless for three reasons:
1) Neither party objected when the trial judge stated that he would talk to the witnesses in his chambers with only a court reporter present.
2) The witnesses had previously testified in open court to their knowledge of the children's behavior and progress in school. Appellants' counsel had cross-examined both teachers extensively at that time. The record reveals that the remarks made by both witnesses in the judge's chambers were essentially identical to their statements in open court.
3) Most importantly, the teachers' statements in chambers were quite favorable to appellants. If anything, the interviews were detrimental to appellees' case. Both teachers commented on the grandparents' interest and concern for the children's welfare and the numerous school conferences which the grandmother attended. Obviously, the trial judge was unpersuaded by this information in making his decision.
Under the circumstances of this cause, and in view of the competent, substantial evidence on which the trial judge based his decision, we hold that the error was not prejudicial to appellants and the final judgment must be affirmed.
CAMPBELL, J., concurs.
SCHEB, C.J., concurs specially.
Judge Hobson has critically analyzed appellants' only meritorious point on appeal and, for the reasons he recites, I concur. The trial judge strived diligently to make a just decision, and there is substantial competent evidence to support his judgment changing custody of the minor children.
I wish to comment, however, on the trial judge's questioning of two witnesses in his chambers outside the presence of the parties or their counsel. I think it is contrary to fundamental principles of due process of law for a court to take any testimony in private, even though recorded. The error here was exacerbated because the court did not even allow counsel to inspect a transcript of that testimony until it had entered its final judgment. Further, while I understand the motive of the trial judge in attempting to remove any inhibition the witnesses might have felt, I also appreciate the role of counsel as officers of the court in insuring that all aspects of a witness' testimony are aired by examination of the witness and rebuttal. In my opinion conduct of any part of judicial proceedings in private threatens the pursuit of justice under our adversary system.
In this case, however, the error was harmless for the reasons set out in the majority opinion. My reading of the testimony persuades me that it would be of no benefit to order a new trial; to the contrary, a new trial would be an unnecessary and expensive prolongation of proceedings which would likely end in the same result.