Brown v. Brown

134 F.2d 505, 77 U.S. App. D.C. 73, 1942 U.S. App. LEXIS 2448

• Court: District Court, District of Columbia
• Decided: December 21, 1942
• Docket: No. 8006
• Status: Published

Opinions

RUTLEDGE, Associate Justice.

The special appeal is from an order of the District Court denying appellant’s motion that certain matters be not referred to the Domestic Relations Commissioner for investigation and report.

Appellant and appellee are husband and wife, who have been living apart since before this suit was begun. In July, 1940, he instituted it, seeking only the custody of their six-year-old child. The wife answered, praying custody. On August 16, 1940, the court awarded custody to her pendente lite, with provision for the father to see the child at suitable times and that neither party should remove the child “from its present home except as provided herein without the approval of both parties.” The child was then living with •the maternal grandparents near Frederick, Maryland. On July 25, 1941, appellant filed a written motion (1) to amend the order of August 16, 1940, “by more equitably dividing the custody” between the parties or requiring that the child be returned to the District of Columbia and remain here, and (2) to advance the cause for early hearing on the merits.

Thereafter appellant’s attorney moved orally that the written motion of July 25, 1941, be not referred to the Domestic Relations Commissioner for his investigation and report. The oral motion was denied. We allowed a.special appeal, to be .confined to the single question of the validity of Rule 15 (9), now Rule 9 (h), of the District Court. The rule is as follows:¹

“An assistant clerk of court, to be known as Domestic Relations Commissioner, shall be designated to assist the Court in domestic relations cases. All cases involving determination of the question of temporary custody of a child, or of the question of the amount of temporary maintenance for a wife, or child, shall be investigated by the Domestic Relations Commissioner, who shall make written report oí his investigation, with recommendations based thereon, * * * and shall furnish a copy of his report to each party. Where a report is filed and no objections are filed to it within two days after a party has been given a copy of the report, the Court shall have authority to act on the report with- ■ out hearing. If the report of the Domestic Relations Commissioner is not filed within ten days after a case has been brought to his attention, and prompt action is deemed necessary by the Court, a hearing may be held without the report.” (Italics supplied.)

Rule 15 (9) was adopted in general term² October 8, 1940, and on October 10 following an order was entered désignating Philip M. Hamilton, an assistant clerk of the court, as Domestic Relations Commissioner.

Appellant vigorously attacks the rule as being beyond the court’s power to adopt and as violative of due process of law in its procedures and effects. He also challenges .the authority of the assistant clerk to act as Domestic Relations Commissioner and of the court to appoint him as such. These questions may be here prematurely. If the rule had been applied to appellant and he had been prejudiced in any respect, he would be in position to complain. But the rule has not been applied to him, nor have his rights been prejudiced by its operation. His motion, now in review, does not relate to such an application. It seeks rather to prevent one, and it does this without showing that it could or would injure him or violate any right.

The rule is applicable only to questions arising pendente lite, specifically the temporary custody of a child and temporary maintenance for a wife or child. The Commissioner is authorized to investigate, report and recommend in such matters. He must furnish a copy of the report to each party. When the report is filed, if no objections are made, the court is authorized to act upon it without a hearing.

The practice under the rule and its admitted effect are to give the court and the parties the benefit of the report when neither party objects. If either makes objection, it is not considered. Cf. Bussius v. Bussius, D.C.1941, 38 F.Supp. 871. The entire procedure is a consent procedure. Cf. Mahoney v. Mahoney, Ohio Ct.App.1931, 9 O.L.A. 434, holding that in the absence of objection the court may act upon such a procedure in these matters, though action against objection was held invalid. The purpose of the rule is not to deprive a party of the opportunity to present such evidence as he wishes to offer in the usual manner, and it does not have that effect. The terms of the rule might have been drawn, perhaps, to express this intention more positively. But the construction which the court has placed upon it in practice and in the decision referred to must be taken as. expressing its true intent and effect, at any rate until .it is applied in some other way. The rule does not make the report evidence or admissible in evidence. It does not purport to keep out evidence. It merely provides a convenient and accurate method, as well as an expeditious one, by which facts may be secured and presented for the court’s attention in interlocutory matters when both parties consent to its use. As the court stated in the Bussius case, 38 F.Supp. at page 873, it also affords a procedure “in the nature of a pretrial effort to eliminate questions on which there is no necessity of taking evidence, without in any way precluding any party from having a question determined by the Court upon sworn evidence when such party wishes to offer such proof, or to cross-examine witnesses offered by the adverse party.” We find no sound basis for regarding a rule which operates in this manner as invalid or beyond the court’s power to adopt.

What appellant seeks by this appeal is to have us, in effect, enjoin or prohibit the trial court from making application of a rule to him which he himself can avoid simply by objecting to the use of the report when it is filed. Because it has not been applied to him, is not certain to be applied, and because he has full power to prevent its application and therefore any of the allegedly harmful consequences he seems to fear, he is not entitled to the relief he seeks.

Counsel substantially conceded at the oral argument that appellant has it in his power to prevent any harm anticipated from use of the report by the court in deciding the written motion. In one respect, however, it was urged the rule would operate to appellant’s detriment. This was in the mere facts of making the investigation and filing the report. Under the letter of the rule these take place before either party has an opportunity to make objection. In other words, appellant urges it is a violation of the court’s authority and his rights for the Commissioner to make his investigation and file his report, regardless of whether it is or may be used against him. The objection is not well taken.

If, as was not asserted, it is founded upon the hypothesis that the court will disregard its own rule and practice, by having recourse privately to the report notwithstanding objection to its use, the objection cannot be tolerated. Should such a case arise, it will be time enough to take action regarding it when it does. If that is not the basis for the contention, we do not see how appellant can be injured through operation of the rule to this extent. The Commissioner’s efforts might be wasted, but that would not be a sufficient basis for challenge of the rule by a party who objects to use of the report. Nor does the rule subject him to any form of inquiry or inquisition. No duty is imposed to appear before or respond to questions asked by the Commissioner, furnish him with information, or cooperate in any other respect. The only fear explicitly stated was that the Commissioner might discover some discrediting fact, incorporate it in his report, and thus spread it in the files of the court for public notice. The contingency is possible. But if it were more than that it would hardly be a sufficient ground for the relief appellant now seeks. Something more than the possibility that someone, even an official of the court, may incorporate in the court’s files a paper or papers containing matter discreditable to a litigant is required to furnish a basis for relief. Private litigants daily file such matter, yet it is not our function to avoid the rules which permit this, in advance of the fact. Nor, before it occurs, are we justified in assuming the event feared by appellant will take place or do so to his injury. We think therefore appellant has misconceived his rights, because he has anticipated injuries which may never occur and which, in large part if not altogether, the rule itself gives him power to prevent.

We add that appellant seems to regard the proceeding as merely an adversary one between private parties involving private rights. It is more than that. When parents are at odds and their differences include the custody of a minor child or children, the court is an interested party as much as they. The proceeding is in fact tripartite. While all rights of the parents must be observed, the interest and welfare of the child are the primary considerations. Of these the court is guardian, representing the state, in an independent sense, above and beyond the duty to observe the parents’ rights. In cases where both parents are disqualified for custody, it cannot leave the matter to be determined solely by their crossing of swords. Nor can it do so in any case when that mode of litigation and decision will not protect the interests of the child as fully as should be done. It was no doubt in recognition of this obligation that Rule 15 (9) was adopted. We note this in order to point out that timely attack, to be successful, must take account of the court’s peculiar position in such matters, and not merely of the adversary rights of the contending parents.

The order is affirmed.

1 The language of the present rule, Rule 9(h), is slightly different, but the substance of the two rules is the same.

2 D.C.Code 1940, § 11 — 312: “The general term of said court shall be open at all times for the transaction of business; and said court, by orders passed in general term, may regulate the periods of holding the special terms * * * may establish written rules regulating pleading, practice and procedure, and by said rules make such modifications in the forms of pleading and methods of practice and procedure prescribed by existing law as may be deemed necessary or desirable to render more simple, effective, inexpensive, and expeditious the remedy in all suits, actions, and proceedings * * *”