Ritsi v. Ritsi

160 So. 2d 159
CourtDistrict Court of Appeal of Florida
DecidedJanuary 30, 1964
Docket63-772
StatusPublished
Cited by42 cases

This text of 160 So. 2d 159 (Ritsi v. Ritsi) 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
Ritsi v. Ritsi, 160 So. 2d 159 (Fla. Ct. App. 1964).

Opinion

160 So.2d 159 (1964)

Michael C. RITSI, Appellant,
v.
Christine RITSI, now known as Christine Ruschmeyer, Appellee.

No. 63-772.

District Court of Appeal of Florida. Third District.

January 30, 1964.
Rehearing Denied February 18, 1964.

*160 Milledge, Rutledge, Milledge & Simon, Miami, for appellant.

Joseph Pardo, Miami, for appellee.

Before BARKDULL, C.J., and CARROLL and HORTON, JJ.

CARROLL, Judge.

This interlocutory appeal is from a post decretal order modifying a divorce decree as to custody of two children, a boy aged 12 and a girl aged 9. In a separation agreement made prior to the decree, and in contemplation thereof, it was agreed the father would have the custody of the children, with generous visitation rights given the mother.[1] She waived all alimony and *161 child support. The final decree of divorce, filed April 3, 1962, ratified the agreement and granted custody to the father in accordance therewith,[2] and reserved jurisdiction for its enforcement and for matters relating to custody.[3]

Nine months after the divorce the wife moved for a change of custody to her. A hearing was held thereon on January 31, 1963, at which testimony was taken. The chancellor then made a peculiar order, on February 5, 1963. He neither granted nor denied the petition to modify but said: "That the Petition of the plaintiff for custody of the two minor children of the parties hereto be and the same is herein deferred until subsequent to June 1, 1963 and prior to August 15, 1963, at which time this Court shall enter its order determining the care, custody and control of the two minor children." Nine months after the hearing on the petition to modify, in September of 1963 without further trial or testimony the chancellor entered an order granting the petition for modification and changing the custody of the children from the father to the mother. The order gave the father "reasonable rights of visitation" and required him to pay $20 per week child support.

Appellant contends that the order of February 5 amounted to a ruling for the father and was res judicata, and that having so decided the petition for modification the chancellor could not reserve jurisdiction to make a contrary order months later without a new petition and proof of change of circumstances of the parties after the February order. That argument is unsound. The September order was not a modification of the one in February. The wording of the two orders shows the later one in September was a ruling on the wife's petition to modify the final decree based on the hearing and testimony presented the previous January. But the appellant is correct in his contention that because the circumstances of the parties could have changed in the interval, it was not proper to order a change of custody nine months after the hearing without evidence being taken in September relating to the circumstances of the parties and unless the circumstances as they existed at that time required the change for the welfare of the children.

Appellant makes the contention that the evidence did not disclose changes in circumstances to warrant change of custody. The changed circumstances alleged in the petition were that both parties had remarried, and the following:

"5. That the plaintiff, with her present husband, have purchased a new home located at 8345 S.W. 152nd *162 Street, Miami, Florida; and said home has four bedrooms at an approximate purchase price of $27,000.00; that the plaintiff's conditions since the time of the entry of the Final Decree of Divorce has substantially changed in that at the time that she was divorced she had no home or facilities to take care of the two minor children and was employed, and did advise the Court that she was not at that time able to adequately care for and maintain the custody of said two minor children; that her condition has substantially changed with her remarriage and she now has the facilities to adequately and properly care for and maintain the two minor children. Plaintiff is not now presently employed.
"6. It appears also that the two minor children of the parties are presently housed in the facilities with the defendant and his present wife and her five minor children, who range in ages from 4 years to 13 years, consisting of two girls and three boys; and that the facilities of the home are presently inadequate for the proper care, welfare and maintenance of said minor children."

It was shown that before obtaining her divorce the petitioner had decided to marry Ruschmeyer, who owned a hotel in Montauk, Long Island, New York, from which he was drawing an income of $15,000 a year. The petitioner had known him as a regular visitor in Florida, who customarily spent 5 months in winter in Florida and 7 months in the north each year. After her divorce decree in April 1962, the petitioner went to Montauk, New York and worked for Ruschmeyer until they married two months later. As provided for in the divorce decree, the petitioner had the children with her on Long Island that summer. At the hearing in January 1963 it was brought out that Ruschmeyer and the petitioner had decided to remain in Florida and not spend part of each year in New York.

The father's answer to the petition for custody had this to say regarding Ruschmeyer's character and conduct:

"4. The respondent admits the allegations contained in paragraph 4 [which alleged the custody provision of the decree] and further states that your respondent has honored this provision of the decree, and that last summer in 1962, the two minor children went to visit their mother and Gerhardt Ruschmeyer in Montauk, L.I., N.Y., and that Christine Ruschmeyer sent the children home early to Mr. Ritsi, stating that she and Mr. Ruschmeyer were getting a divorce, that they were not getting along due to his and her drinking, that they fought in front of the children in New York, that Gerhardt Ruschmeyer struck Christine Ruschmeyer in front of the children in New York and that their conduct, and Mr. Ruschmeyer's later hospitalization show that they are unfit to remove custody of these children."

The answer also averred:

"Respondent states that he has a good Christian home for these children, that until Petitioner came back they attended Church every Sunday and enjoyed a fine home and are getting along very well. That the neighbors have even remarked about how different the children are since their mother has left them alone and respondent raised them. Respondent would say that he has adequate facilities to care for these children and they should remain where they are.
"That petitioners have an unstable, unstead[y] married life, characterized formerly by excessive drinking; that petitioner Christine Ruschmeyer uses foul language in the presence of the children; she does not require them to go to Church or Sunday School, that she is more interested in material matters than in the welfare of the children, that the older boy and young girl are *163 well adjusted and are of the intelligence that this Honorable Court, out of hearing of counsel, could determine where their welfare lies and their best interest would be served."

Among the facts brought out in evidence at the January 1963 hearing were the following: Ruschmeyer had an income of $15,000 a year. The petitioner had no income. The Ruschmeyers had purchased a four-bedroom house costing $27,000. Ruschmeyer did not testify.

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Bluebook (online)
160 So. 2d 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ritsi-v-ritsi-fladistctapp-1964.