Joan T. KERN, Appellant,
v.
Jack D. KERN, Appellee.
Supreme Court of Florida.
*18 Charles R. Holley, Naples, for appellant.
J. Blan Taylor of Taylor & Locker, Naples, for appellee.
PER CURIAM.
This is аn appeal from a judgment rendered by the Circuit Court in and for Collier County. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.
Appellant Joan and Appellee Jack Kern were married оn June 5, 1954, in Oak Park, Illinois. They are the parents of six children, four of whom are minors. After moving many times since 1954, the Kerns, both ordained Unity ministers, came to Naples, Florida, where they organized a church оf that denomination.
Jack Kern filed a petition for dissolution of marriage in the Palm Beach County Circuit Court on May 11, 1972. The court entered a default and final judgment granting the dissolution and awarding him custody of the minor children. This order was reversed on appeal. Kern v. Kern,
The circuit court in Collier County held a motions hearing on June 9, 1975, and had trial the following day. The trial was continued until June 17, 1975, when the court rendered its decision. The marriage was found to be irretrievably broken, and Mr. Kern was awarded custody of the minor children and given exclusive possession of thе marital home in which to reside until the youngest child reaches majority. The trial court set aside the previous conveyance of this property from Joan Kern to her husband, rendering it a tenаncy in common. When the youngest child reaches majority, the property is to be sold, with the net proceeds divided equally. The court also denied Joan any monetary relief such as alimоny, special equity or child support.
On this appeal Mrs. Kern seeks relief from all aspects of the trial court's ruling save for the dissolution order itself. She raises some fifteen points on aрpeal. We find that of these issues only the constitutional question which vests this Court with jurisdiction merits discussion.
*19 Section 61.20, Florida Statutes, reads as follows:
"Social investigation and recommendations when child custody is in issue. In any action where the custоdy of a minor child is in issue, the court may request the [Department of Health and Rehabilitative Services] to make an investigation and social study concerning all pertinent details relating to thе child and each parent. The [Department of Health and Rehabilitative Services] shall furnish the court with a written report with its recommendation with a written statement of facts found in its social investigations on which its recommendations are based. The court may consider the information contained in the report in making a decision on the child's custody and the technical rules of еvidence do not exclude such report from consideration."
(Note: Prior to the abolition of the Division of Family Services, Chapter 75-48, Laws of Florida, the name of that agency apрeared where that of H.R.S. now appears in the above statute, and the briefs discuss the role of D.F.S. in this connection.)
Appellant contends that the trial judge's consideration of such reports, which by their very nature contain hearsay and opinion statements otherwise inadmissible in a court of law, constitutes a denial of due process of law. She alleges further that the statutе is an unconstitutional infringement of her right to confrontation of witnesses. In support of her position she cites a dissenting opinion in Green v. Green,
The issue of the constitutionality of Section 61.20, Florida Statutes, has not been the subject of a reported appellate opinion. (The majority in Green, supra, a per curiam affirmance without opinion, did not discuss the statute's constitutionality.[2]) In the absence оf such authority, we look to out-of-state cases on this subject and to a United States Supreme Court decision whose reasoning is applicable to the instant controversy. Such casеs persuade us to take a view which differs from that expressed in the dissenting opinion in Green, supra.
At the outset we note the wide discretion reposed in the trial court where, as in the instant case, the future оf young children is at stake. Because the credibility of witnesses and the weight of their testimony is best determined by the trial court, fact findings made by trial judges in child custody hearings should be accorded great wеight. Grant v. Corbitt,
"The burden on a Judge when he acts as parens patriae is perhaps the most demanding which he must confront in the course of his judicial duties. Upon his wisdom, insight and fairness rest the future happiness of his wards. The procedures of the custody proceeding must, therefore, be molded to serve its primary purpose and limited modifications of the traditional requirements of the adversary system must be made, if necessary. The test is whether the deviation will on the whole benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision." Lincoln v. Lincoln, 24 *20 N.Y.2d 270, 272,299 N.Y.S.2d 842 , 843-44,247 N.E.2d 659 , 660-61 (1969) (citations omitted).
By providing the trial court with potentially valuable information compiled by professional social workers, the instant statute constitutes a legislative cognition of the suitability of modified proceedings in this special area.
It has been hеld that, so long as such reports or a description of the contents thereof are made available to the parties, there is no violation of due process guarantees.[3] Trial courts have consistently been reversed, however, for considering such reports without notice to, or knowledge of, the parties. See, e.g., Dees v. Dees,
"... [I]n general, it may be argued that the report itself is admissible under well-recognized exceptions to the hearsay rule. In fact, it may be doubted whether the report is within the hearsay ban at all. The dangers of faulty perception and narration seem alleviated by the social workers' special skills and training; falsification seems unlikely; and memory is unimportant if the report is more or less contemporaneous. A similar approach is suggested by numerous statutes providing that such reports shall be `competent' or `admissible' as evidence." (footnotes omitted)
Comment, Use of Extra-Record Information in Custody Cases, 24 U.Chi.L.Rev. 349, 357 (1957).
We note further that the United States Supreme Court has upheld a death sentence based partially on information not made available to counsel. While "open сourt testimony with cross-examination" is required when the issue is guilt or innocence of a particular offense, limiting a judge's consideration to such evidence in the determination of an apрropriate sentence would be "totally impractical if not impossible," since such a deliberation should include the "fullest information possible concerning the defendant's life and chаracteristics." Williams v. New York,
For the foregoing reasons we hold Section 61.20, Florida Statutes, to be a constitutional legislative recognition of the necessity for professional social workers' invеstigative skills and personal counseling as a means of furthering the trial court's search for just and humane results in this sensitive area.
We have carefully considered and analyzed the record, briefs, and arguments of counsel with respect to the remaining points on appeal and conclude that the trial court did not commit reversible error nor did he abuse his discretion in the conduct of the proceedings.
Accordingly, the judgment is affirmed.
OVERTON, C.J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.
NOTES
Notes
[1] Decisions in other appeals taken by Mrs. Kern are reported at
[2] We note that Green is distinguishable factually from the case sub judice because in Green "[t]he report, prepared and filed at the request of the court, was considered by the court in reaching its determination on the custody issue, although neither party had access to the report or its content."
[3] Jenkins v. Jenkins,