Neubert v. Harter

394 So. 2d 242, 1981 Fla. App. LEXIS 18829

• Court: District Court of Appeal of Florida
• Decided: February 27, 1981
• Docket: No. 80-1094
• Status: Published

Opinions

HOBSON, Judge.

Appellants Harold and Mary Neubert appeal the trial court’s order which changed custody of three minor children from appellants, the paternal grandparents, to appel-lee, 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.