Fewel V. Fewel

SCHAUER, J. We have before us two appeals, one from an order filed November 7, 1941, and one from a similar order filed January 5, 1942. Stripped of unnecessary details the record establishes that in a proceeding instituted by defendant to secure modification (after final judgment) of an order awarding to the plaintiff the custody of the two minor children of the parties, the trial court refused to hear evidence on the part of plaintiff and made the initial order of modification, which is the controlling subject of this appeal, based exclusively on the recommendation of a court investigator of domestic relations cases, provided for by section 261a of the Code of Civil Procedure. It appears that when the motion was called for hearing on October 1, 1941, the court indicated that it would refer the matter to its assistant for investigation and report, and that it instructed the parties, "You will all return -- without witnesses because the report of the investigator will be final -- with that understanding -- November 7th at 10:00 o'clock." On November 7, the motion was again called for hearing and the court immediately stated, "We are going to adopt the recommendation of the investigator, gentlemen, I will say to you."