Bruggisser v. Bruggisser

244 So. 2d 518, 1970 Fla. App. LEXIS 6603
District Court of Appeal of Florida·Decided December 16, 1970·No. No. 70-688·Published·Cited by 5 cases

Opinion

CARROLL, Judge.

This is an interlocutory appeal filed by the plaintiff (wife) in á divorce suit, from a post judgment order relating to alimony, child support and custody.

The parties were divorced in Dade County on February 18, 1960, by a judgment wherein the wife was granted alimony of $150 per week and child support of $100 per week, and in which she was awarded custody of the two children of the parties, a girl then aged 10 years and a boy then 5 years of age.1 In addition, the wife was granted the right to reside with the children in the jointly owned residence so long as she remained unmarried, during the minority of the children.

On a- subsequent petition for modification an order was entered reducing the alimony to $80 per week and the child support to $55 per week, $15 of which was allocated to support of the daughter and $40 a week for support of the son. At the time of that reduction in child support the daughter was in college with her tuition and expenses there being paid by the husband. Thereafter, the son was enrolled in a boarding school, with his tuition and expenses there being defrayed by the husband. On an appeal by the wife from that order this court reversed on February 3, 1970, and remanded the cause for a reconsideration of the matter by the trial court and for entry of “an order granting the appellant an increase in alimony commensurate with her needs and with the appellee’s ability to pay,” and authorizing the trial court to “modify the award of support of the son, who is in boarding school.” 231 So.2d 278.

Following such remand, the cause came on for further hearing on the matters of alimony and child support, and upon a petition filed by the husband seeking transfer of custody to him. Thereupon the court entered the order from which the wife has filed the present appeal. By that order, dated May 8, 1970, the amount of alimony required to be paid to the wife was increased to $100 per week; the provision of the prior order for payment to the wife of $15 per week as child support for the daughter was continued (the trial court noting that the daughter was attending col[520]*520lege at the expense of the husband); and the custody of the son was transferred from the mother to the father and the father was relieved of the necessity to pay child support payments for the son to the wife.

The appellant contends the court erred in ordering a change of custody of the son, and that the alimony as increased by the court was inadequate. Considering first the matter of alimony, we conclude, upon reviewing the record relating thereto, that abuse of discretion by the trial court has not been shown. No useful purpose would be served by relating here the showing made in the record relating to the needs of the wife and the financial status of the husband. If changing circumstances should establish inadequacy of the alimony in the future, a necessary correction therein can be sought by the wife by petition for further modification.

The contention of the appellant, to whom the custody of the son was awarded by the divorce judgment, that no proper or sufficient showing was made for transfer of custody of the son from her to the father, is meritorious, and we hold that the trial judge was in error therein.

As grounds for the requested change of custody, the petition of the husband alleged that the son was attending a boarding school (Sanford Naval Academy) at his expense; that he had “facilities to house as well as to provide control of the said child” during the son’s vacation periods; that the children of the parties were of mature age and their wishes could be considered by the court; and that he was “a fit and proper person to have the care, custody and control of his minor children.” In an answer to the petition for change of custody the wife denied that the husband was in position to house and control the children in a manner conducive to their best interest and welfare, and averred that subsequent to their divorce the husband had remarried and again been divorced, but was continuing to reside in a home with his divorced wife and her child by a previous marriage. At the hearing on the petition, that averment was supported by the evidence.

The petition did not allege unfitness of the mother to have custody of the son, and no evidence of unfitness was presented. The pertinent testimony offered by the father in support of his petition for change of custody of the son was as follows:

“Q You asked this Court for the custody of your two children.
“Would you tell the Court as to your son?
“A Well, my son is at the age, now— he is as big as I am. We get our clothes mixed up. He’ll borrow my shirts. He is at the point now where he is a man. He is fourteen, and going to bed with women. He knows I go to bed with women—
“Mr. Pardo: Your Honor, I am going to object to that one. That is hearsay.
“Q [By Mr. Swan] Tell him what your position is.
“A My position is, my son has turned into a man; that he needs to live with a man that understands him. I am his father. I have been deprived for all of these years with conflicts, and people, and his mother tearing me down, and now, I’d like to take over with my son, because he needs me now.
“We get in there and work on the boat. We fish. I have taken him to Nassau with me, and the boy likes living with me, and all his friends.
“That is the reason, incidentally, he does stay at home.”

In this case the trial court was called upon to observe the established principle, as stated in Belford v. Belford, 159 Fla. 547, 32 So.2d 312, that upon application for change of custody the court does not have the same degree of discretion to choose between the parents as that which is reposed in the court at the time of final hearing and judgment. In that case the Su[521]*521preme Court quoted from Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 465, as follows :

“ ‘ * * * But it is likewise the law that a decree in a divorce suit, fixing the custody of a child of the parents being divorced, whether based on a stipulation entered into by the parties and approved by the court, or whether entered by the court after adversary hearing and determination of a contested issue respecting the matter, is nevertheless a final decree of the court on the conditions then existing, and is not to be materially amended or changed afterward, unless on altered conditions shown to have arisen since the decree, or because of material facts bearing on the question of custody and existing at the time of the decree, but which were unknown to the court and then only for the welfare of the child. * *

See to the same effect Sayward v. Say-ward, Fla. 1950, 43 So.2d 865; Bennett v. Bennett, Fla.1954, 73 So.2d 274; Johnson v. Johnson, Fla.App.1959, 114 So.2d 338; Ritsi v. Ritsi, Fla.App.1964, 160 So.2d 159; Hoffman v. Linley, Fla.App.1967, 201 So.2d 638; Klein v. Klein, Fla.App.1967, 204 So.2d 239; Doran v. Doran, Fla.App.1968, 212 So.2d 100; Smith v. Smith, Fla.App.1968, 212 So. 2d 117.

Tested against those principles the father’s petition and the evidence submitted in support thereof was insufficient upon which to order change of custody of the son.

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Bruggisser v. Bruggisser, 244 So. 2d 518, 1970 Fla. App. LEXIS 6603 (Fla. Ct. App. 1970).

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