The appellant, Pauline J. Ruck, filed a petition for a writ of habeas corpus in the circuit court of Montgomery County seeking custody of her two children, Leslie and Evelyn, who were 8 and 6 years of age, respectively, when the proceeding was instituted. The appellee, Joseph W. Ruck, is appellant's divorced husband and the father of said children.
In June, 1951, the Superior Court of Cook County, Illinois, rendered a decree granting a divorce to Mrs. Ruck on the ground of cruelty. The divorce decree awarded the care, custody and education of said children to their father, who has had their custody continuously since the parties' separation in July, 1950. In September, 1953, the same court rendered a decree modifying the original decree by awarding custody of the children to Mrs. Ruck. In December, 1953, she instituted the proceeding now under review, seeking custody of said children on the strength of the modified Illinois decree. At the time of filing the petition the children were residing with their father in Montgomery County.
The trial court, in its judgment dissolving the writ of habeas corpus, recognized the validity of the Illinois decree of modification but denied custody to the mother on the basis of changed conditions since the rendition of the modified decree, that is, circumstances creating an emergency as to the immediate welfare of the children. As thus stated in the judgment:
It is insisted by appellee that the trial court erred in holding the Illinois modifying decree to be valid. But there is no cross-assignment of error taking the point. In this circumstance the question is not before us for decision. Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 257, 73 So.2d 524; Rea v. Rea, 253 Ala. 169, 171, 43 So.2d 402; Webb v. Webb, 250 Ala. 194, 210, 33 So.2d 909; Great American Ins. Co. v. Pearson, 220 Ala. 664, 665, 127 So. 233; Colvin v. Payne, 218 Ala. 341, 343, 118 So. 578; Code 1940,
Reduced to the ultimate, the question presented by the assignments of error is whether there is sufficient evidence to support the trial court's finding of an emergency as to the immediate welfare of the children. Sappington v. Fort, 258 Ala. 528, 531, 63 So.2d 591; Ferguson v. State ex rel., 251 Ala. 645, 647, 38 So.2d 853; Ex parte State ex rel. McLaughlin, 250 Ala. 579, 35 So.2d 507; Little v. Little, 249 Ala. 144, 30 So.2d 386, 171 A.L.R. 1399.
It is appellee's insistence, however, that this point should not be considered because it affirmatively appears from the record that there was evidence before the trial court (examination of the children by the court) which is not set out in the record We are constrained to hold that this insistence is well taken. Moore v. Pettus, 260 Ala. 616, 625, 71 So.2d 814; Grand Lodge, etc., v. Hermione Lodge No. 16, 258 Ala. 641, 645, 64 So.2d 405; Thomas v. Thomas, 246 Ala. 484, 486, 21 So.2d 321; Fuller v. Blackwell, 246 Ala. 476, 477, 21 So.2d 617; Gipson v. Hicks, 243 Ala. 617, 618, 11 So.2d 461; Linn v. Linn, 242 Ala. 688, 690, 8 So.2d 187; McGriff v. McGriff, 242 Ala. 69, 4 So.2d 507; Allen v. Allen, 223 Ala. 223, 225, 135 So. 169; Hogg v. Jenifer Iron Co., 215 Ala. 683, 112 So. 207; Wood v. Wood, 119 Ala. 183, 185, 24 So. 841. From Moore v. Pettus, supra [260 Ala. 616, 71 So.2d 821], is the following:
In the trial court's decree, it is stated as follows:
The record does not disclose any testimony given by the children. Hence we have no way of knowing what, if any, factual statements they made, nor what effect any such statements might have had on the trial court's conclusion. In short, we are left to surmise only. In reviewing the judgment on appeal we are confined to the record and would not be warranted in assuming that evidence, relevant and material to the case, was not given by the children. We must presume that they gave evidence sufficient in character and weight, considered in connection with all the other evidence, to justify the trial court's conclusion.
We are not unaware of the practice of interviewing minor children in custody cases as was done in the instant case. We recognize, too, that the private examination of children in such cases, no doubt, would be more helpful in obtaining full and frank
We do not decide whether such examination by the court would be ground for reversal, since there is no assignment of error taking the point. In this connection, see the following authorities: Ex parte Leu, 240 Mich. 240, 215 N.W. 384, 385, 386-387; Hicks v. Hicks, 26 Tenn.App. 641, 176 S.W.2d 371, 377, certiorari denied July 3, 1943; Brooks v. Thomas, 193 Ga. 696, 19 S.E.2d 497, 499; Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514, 516-517; Sheehy v. Sheehy, 88 N.H. 223, 186 A. 1, 4, 5, 107 A.L.R. 635; Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638; Burger v. Burger, 6 N.J.Super. 52, 69 A.2d 741, 742; Penn v. Abell, Tex.Civ.App., 173 S.W.2d 483, 488; Callen v. Gill, 7 N.J. 312, 81 A.2d 495, 498, 499; Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125, 128; Nelson, Divorce and Annulment, 2d Ed., §§ 15.47, 15.48, pp. 251-254. We here note that the record does not disclose whether the examination was made with the consent of the parties or over their objections. Nor is there any showing of whether or not counsel for the parties were present at the examination and afforded an opportunity to question the children. In any event, the evidence given by the children is not set out anywhere in the record. In this situation the trial court's findings from the evidence are not open for review.
The judgment discharging the writ of habeas corpus and remanding the children to the care, control and custody of their father, Joseph W. Ruck, is due to be affirmed. It is so ordered.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur.