Cushen v. Cushen

District Court of Appeal of Florida

Cushen v. Cushen

143 So. 2d 536, 1962 Fla. App. LEXIS 3065

CourtDistrict Court of Appeal of Florida

DecidedJuly 31, 1962

DocketNo. 62-306

StatusPublished

Cited by1 cases

This text of 143 So. 2d 536 (Cushen v. Cushen) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cushen v. Cushen, 143 So. 2d 536, 1962 Fla. App. LEXIS 3065 (Fla. Ct. App. 1962).

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Opinion

PER CURIAM.

The appellant is the respondent to a petition for change of custody of the child of the parties. The appellee-petitioner is the father of the child. Appellant and appel-lee were divorced in 1955 and appellant-wife was awarded custody. The petition alleges in general terms that the appellant is not providing a proper home for the child. Appellant moved to dismiss the petition upon the ground that it did not allege facts upon which the charge is based. The motion was denied and this interlocutory appeal is from that order.

The rules of civil procedure were designed to simplify pleading. If we are to retain in all their vigor the distinctions between “ultimate facts” and “evidentiary facts” we will frustrate one of the purposes of the rules. The test is whether the complaint (petition here) is sufficient to state a cause of action.

The petition informed the respondent of the nature of the cause of action, and no> prejudice having been demonstrated we affirm. See also Cravero Home Building Company v. Jaffe, Fla.App.1962, 142 So.2d 342, opinion not yet reported.

Affirmed.

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PER CURIAM.

The appellant is the respondent to a petition for change of custody of the child of the parties. The appellee-petitioner is the father of the child. Appellant and appel-lee were divorced in 1955 and appellant-wife was awarded custody. The petition alleges in general terms that the appellant is not providing a proper home for the child. Appellant moved to dismiss the petition upon the ground that it did not allege facts upon which the charge is based. The motion was denied and this interlocutory appeal is from that order.

The rules of civil procedure were designed to simplify pleading. If we are to retain in all their vigor the distinctions between “ultimate facts” and “evidentiary facts” we will frustrate one of the purposes of the rules. The test is whether the complaint (petition here) is sufficient to state a cause of action.

The petition informed the respondent of the nature of the cause of action, and no> prejudice having been demonstrated we affirm. See also Cravero Home Building Company v. Jaffe, Fla.App.1962, 142 So.2d 342, opinion not yet reported.

Affirmed.

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143 So. 2d 536, 1962 Fla. App. LEXIS 3065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cushen-v-cushen-fladistctapp-1962.

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