Opinion
March 20, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
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Hindry & Meyer, Charles F. Brega, Samuel J. Smith, Denver, for plaintiff-appellant.
Richard A. Anderson, Lakewood, for defendant-appellee.
SMITH, Judge.
On January 20, 1969, plaintiff was granted a decree of divorce from defendant and custody of the minor children of the marriage, with reasonable visitation rights granted to defendant. On June 24, 1970, defendant filed a motion for change of custody together with a motion for a restraining order. The court, Ex parte, upon the testimony of defendant, entered an order which restrained plaintiff from removing the children from the state and temporarily granted custody of the children to defendant. On May 11, 1971, plaintiff filed a motion to dissolve the temporary restraining order and temporary custody order. The restraining order was rescinded by the court on June 2, 1971, but the court permitted defendant to retain custody of the three children until a custody hearing could be held.
On August 30, 1971, a custody hearing was held and, as a result of that hearing, the court ordered that defendant should have permanent custody of the two daughters, with visitation rights granted to plaintiff. The custody of the boy was granted to plaintiff with visitation rights to defendant. Plaintiff moved the court for a rehearing or modification of this order. After a hearing, the court denied plaintiff's motion. From this denial, plaintiff appeals asserting that there was insufficient evidence of changed circumstances and, even if sufficient evidence existed to justify a new determination of custody, that the orders of the court were not in the best interest of the children.
The record made at the hearing indicates that plaintiff had resided in Evergreen, Colorado, with his children after the divorce and the order of custody. Thereafter, he remarried and took the children to Michigan without the knowledge or consent of the defendant. Plaintiff's second marriage terminated shortly thereafter. The evidence also disclosed that defendant had changed her status since the custody order and had been married to her second husband for one and a half years. Defendant and her husband had purchased a home, and the evidence established that they had developed a stable environment which the court found conducive to the childrens' best interest.
Once a custody order has been duly entered, it should not thereafter be modified without either a showing of discovery of material facts unknown at the time of the order or a showing that conditions have changed sufficiently to justify the making of a new custody determination. Deines v. Deines, 157 Colo. 363, 402 P.2d 602. The record in this case discloses, as indicated above, sufficient evidence to support the trial court's finding that conditions had changed sufficiently since the initial custody order to justify a new hearing concerning custody. Once the parent seeking a change in custody has met the burden of showing changed circumstances, that parent must then show that a change in custody would be in the best interest of the children involved. Aylor v. Aylor, 173 Colo. 294, 478 P.2d 302. Coulter v. Coulter,
Searle v. Searle, Munson v. Munson,Plaintiff urges that the trial court erred because it based its decision largely on a report submitted in the case. Plaintiff's counsel, at the time of the report's introduction into the proceedings, objected to the court's construction of the report in lieu of testimony.
In Anderson v. Anderson, 167 Colo. 88, 445 P.2d 397, the Supreme Court reversed a change of custody order and stated that 1967 Perm.Supp., C.R.S.1963, 46--1--5(7), authorizing the trial court to call upon the welfare or probation department for a report concerning the ability of each party to serve the best interests of the child, would not be construed 'to deny due process which includes the right to be heard in open court and to have a determination of the issue based upon competent evidence offered by persons who submit themselves to cross-examination.'
The decision in the Anderson case was later reviewed in Aylor, supra. In that case, it was held that the trial court was entitled to rely on the recommendations in the reports as a factor in determining custody. There the court noted that the individuals who made the reports at issue were available for cross-examination and that there was no unfairness or denial of due process in the proceedings. Concerning the reports, the court stated:
'. . . It is true that the order changing the custody of the children was based on the recommendations of the psychiatrist and the welfare personnel, but the trial judge made the award, not the psychiatrist or the welfare worker. They furnished specific information of a specialized nature for aid and assistance to the court, but in the final analysis the judge made the decision. Whatever recommendations may be made to the judge, be they by experts or counsel, they are merely Recommendations and nothing more . . ..'
In Aylor, it was held that the trial court was entitled to rely on the recommendations in the reports as a factor in determining custody.
The evidentiary problems, particularly hearsay objections, arising in connection with reports furnished to trial courts by social service agencies, are only partially dealt with in Anderson and Aylor. In light of the increasing reliance by the courts upon those having expertise in the behavioral sciences, either because of a legislative requirement that a report be prepared and furnished the court or because of difficulties in using the adversary system to assure just results in family situations, it appears necessary that the problem be dealt with in some detail.
These reports generally are prepared in written form and contain a recital of facts developed by an investigator and conclusions or recommendations resulting therefrom. They are submitted to the court for its informal consideration or for subsequent introduction into evidence as part of the record. If only the conclusions or recommendations contained in the report are to be considered by the court in arriving at its decision, it is sufficient that the person formulating the conclusions or making the recommendation be available for cross-examination. If these criteria are met, neither a hearsay objection nor a claim of denial of due process can be sustained under the rules announced in Anderson and Aylor. Under these same circumstances, the factual recitation portion of the report may be received in evidence over a hearsay objection for the purpose of demonstrating the basis on which recommendations or conclusions were made and thus bears on the weight to be given the testimony of the person who prepared the report. In such an instance, the factual recitation is not considered for proof of the facts it asserts, but as a basis for an opinion or conclusion.
On the other hand, if the factual portion of the report is submitted to and relied upon by the court as an evidentiary showing to support an ultimate finding of fact, then the matters contained in the report are being asserted for their factual truth and a hearsay objection should be sustained unless testimony is offered through persons having personal knowledge of the facts from which they can testify. The qualification of a witness as the preparer of the report will not be sufficient unless the witness is otherwise competent to testify to those facts. Consequently, if the hearsay objection is interposed to a report such as the one under consideration here and the objecting party is refused the right to examine the preparer of the report, the report may not be received or considered by the trial court.
We note that 1971 Perm.Supp., C.R.S.1963, 46--1--27, effective as of January 1, 1972, does not significantly alter what has been said here concerning custody reports.
In the instant case, we do not discern an objection that the persons making the report in question were not allowed to testify. Plaintiff made no attempt to call such persons to the witness stand. The court was therefore at liberty to consider the conclusions and recommendations contained in the report even though the hearsay objection made by plaintiff precluded the court from considering the factual basis for these conclusions recited in the report as evidentiary facts. See White v. Director, 30 Colo.App. 393, 493 P.2d 676. The trial court heard the factual evidence upon which it could determine the validity of the conclusions in the report by testimony elicited in cross-examination of the defendant, her present husband, and a co-employee and neighbor of the defendant. Plaintiff, himself, testified and presented the testimony of a clinical psychologist. Thus, there was competent evidence concerning the disputed recommendations contained in the report. The trial court did nothing to limit the evidentiary proof presented by the parties as did the trial court in Anderson. The evidence, independent of the report, was sufficient to support the findings made by the court and the conclusions and judgment entered thereon. We must therefore assume that the trial court sustained the hearsay objection of the plaintiff to the extent that he did not consider the factual assertions contained in the report for their truthfulness, but considered them only insofar as they were supported by the other independent evidence as a basis for the conclusions reached by the investigator.
Plaintiff also alleges that a substantial part of the report pertained to alleged facts and circumstances existing prior to the divorce decree. The plaintiff asserts that it was error for the court to have these matters before it. It is sufficient to say that in a matter tried to the court, the court is deemed capable of discerning the evidence which was immaterial, incompetent, irrelevant, or hearsay and to have disregarded such evidence. Bill Dreiling Motor Co. v. Travelers Indemnity Company, 29 Colo.App. 163, 482 P.2d 999.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.