McCoy v. McCoy

District Court of Appeal of Florida

McCoy v. McCoy

400 So. 2d 859

CourtDistrict Court of Appeal of Florida

DecidedJuly 15, 1981

DocketNo. 80-1226

StatusPublished

Cited by3 cases

This text of 400 So. 2d 859 (McCoy v. McCoy) 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.

Bluebook

McCoy v. McCoy, 400 So. 2d 859 (Fla. Ct. App. 1981).

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Opinion

HERSEY, Judge.

Appellant, mother, originally having custody of her minor son and daughter, appeals a final judgment which awarded custody of the minor daughter to the father. The father made no attempt to obtain custody until appellant sought child support. At the time of the final hearing on the petition for custody each child was at least temporarily residing with the respective custodians, the daughter with her father in Florida and the son with his mother in Pennsyl[860]*860vania. The record discloses that both children now live in Pennsylvania with the mother.

We have not been favored with an appearance on behalf of the father appellee.

We determine that there is not sufficient evidence on this record to sustain a change of custody nor to support the split custody award, based upon the policy stated in Scalzo v. Scalzo, 395 So.2d 1272 (Fla. 4th DCA 1981) and enunciated by our supreme court in Arons v. Arons, 94 So.2d 849 (Fla.1957). The custody of both children should have been awarded to the mother.

Accordingly we reverse the final judgment and remand with instructions to enter a judgment awarding permanent custody of the minor children to appellant. The judgment shall be without prejudice to appel-lee’s right to petition the court for reasonable visitation privileges if he is so inclined.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

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HERSEY, Judge.

Appellant, mother, originally having custody of her minor son and daughter, appeals a final judgment which awarded custody of the minor daughter to the father. The father made no attempt to obtain custody until appellant sought child support. At the time of the final hearing on the petition for custody each child was at least temporarily residing with the respective custodians, the daughter with her father in Florida and the son with his mother in Pennsyl[860]*860vania. The record discloses that both children now live in Pennsylvania with the mother.

We have not been favored with an appearance on behalf of the father appellee.

We determine that there is not sufficient evidence on this record to sustain a change of custody nor to support the split custody award, based upon the policy stated in Scalzo v. Scalzo, 395 So.2d 1272 (Fla. 4th DCA 1981) and enunciated by our supreme court in Arons v. Arons, 94 So.2d 849 (Fla.1957). The custody of both children should have been awarded to the mother.

Accordingly we reverse the final judgment and remand with instructions to enter a judgment awarding permanent custody of the minor children to appellant. The judgment shall be without prejudice to appel-lee’s right to petition the court for reasonable visitation privileges if he is so inclined.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

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400 So. 2d 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccoy-v-mccoy-fladistctapp-1981.

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