Wheeler v. Wheeler

California Court of Appeal Aug 28, 1973 No. Civ. 12573Published

Before: Brown (Gerald)

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Holding. The court held that a party in a child custody proceeding has a due process right to cross-examine the probation officer who authored a custody report used by the court in its decision. Denying this right, even when the court deems the evidence cumulative, constitutes reversible error.

Issues

Whether a trial court may deny a party the right to cross-examine a probation officer whose custody report is considered by the court.
Whether a trial court may exclude witness testimony in a custody hearing based on Evidence Code section 352 when that testimony relates to the probation officer's report.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The court denied due process of law to Lloyd when it refused to allow him to examine Mrs. Clark. It based its decision partly upon her report, and Lloyd was entitled to examine the bases for her unfavorable recommendation.”

“To deny a litigant the right to cross-examine a witness who testifies against him is a denial of due process of law”

“Lloyd had a right to confront Mrs. Clark. He need not have made an offer of proof to cross-examine her on the report”

Opinion

BROWN (Gerald), P. J.

Defendant, Lloyd Wheeler, appeals the denial of his motion to modify a judgment of divorce by changing custody of his younger son Kevin from Joane Wheeler to himself.

Joane and Lloyd are parents of two sons, Shaun, born February 20, 1960, and Kevin, bom September 13, 1962. Joane was given custody of the children July 21, 1964, with Lloyd having reasonable visitation rights. Lloyd married Sharon in 1966, and Joane married Luther Landrum in 1969.

[241]

On April 6, 1972, Landrum and Lloyd had an altercation when Lloyd was late picking up the boys for a weekend visit. Lloyd filed for custody of both children April 11. On April 13 the Landrums and the Wheeler boys moved to Wyoming. Joane was unable to control Shaun and sent him to his father after a few days in Wyoming. Joane stipulated custody of Shaun should be given to Lloyd, and the court issued a stipulated order for a probation study “for the purpose of informing the court regarding modification” of Kevin’s custody. Lloyd wrongfully took Kevin from Wyoming the end of May. The study, under Civil Code section 4602 which provides a probation officer shall investigate custody and file a report which “may be considered by the court,” was prepared by Probation Officer Miriam Clark. She interviewed witnesses, obtained reports of a psychological study on Kevin and of interviews with the Landrums and Kevin. She recommended Joane retain custody of Kevin.

Lloyd’s motion for modification of Kevin’s custody was heard July 24, 1972. The Landrums came from Wyoming to be present. The court stated it had read the probation investigation report, the report from Big Horn County Department of Public Assistance investigating the Landrums, and the psychological evaluation of Kevin. The court declared: “I am prepared to make a decision based on the information contained in those reports. However, before doing so, I will hear an offer of proof from either party, if they would like to augment the record.”

Lloyd made an offer of proof of testimony from five witnesses, including Probation Officer Clark who was available in court. He asked the court to hear the witnesses in order that his position might be properly presented. Joane opposed hearing the witnesses stating, among other things, the stipulation was entered into “to avoid the time-consuming expense of oral evidence”; she also opposed the court hearing any oral evidence. The court rejected the offer of proof as not materially changing the picture in the probation officer’s report. It re-awarded custody of Kevin to his mother after weighing the probation officer’s recommendation, Kevin’s expressed wish, and the legislative policy, “other things being equal, custody should be given to the mother if the child is of tender years” (this phrase was omitted from Civ. Code, § 4600, Stats. 1972, ch. 1007, p. 1855, § 1).

Wheeler v. Wheeler

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