Varvel v. Varvel

35 Fla. Supp. 87
CourtCircuit Court of the 5th Judicial Circuit of Florida, Lake County
DecidedApril 1, 1971
DocketNo. 1319
StatusPublished

This text of 35 Fla. Supp. 87 (Varvel v. Varvel) is published on Counsel Stack Legal Research, covering Circuit Court of the 5th Judicial Circuit of Florida, Lake County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Varvel v. Varvel, 35 Fla. Supp. 87 (Fla. Super. Ct. 1971).

Opinion

W. TROY HALL, Jr., Circuit Judge.

This is a domestic relations proceeding. The defendant wife has currently moved this court for an award of attorney’s fees for services rendered to her and for out of pocket expenses expended in her behalf since the last order of this court on attorney’s fees in December 1969. The motion came on to be heard on March 13, 1971.

The parties were divorced in this court by its judgment dated November 15, 1967. The plaintiff husband was ordered to pay the defendant wife $30 per month for the support of their minor child, provided that he receive reasonable visitation rights. At the time of the divorce the husband was 24 years old, the wife was 20 years old, and the child was three years old. The wife had formerly resided with her husband in Orange County, Florida. After the divorce, the husband remained in Orange County, while she took up residence near her parents’ home in a suburb of St. Louis, Missouri.

The parties engaged in extended, bitter and tumultuous controversy over custody of the child in Missouri, which resulted in the Missouri juvenile court taking jurisdiction over the child in March 1969. Physical custody of the child was placed with the wife by the Missouri court. Later, the wife took the child to Canada for what she said was a vacation with relatives who lived there. The husband alleged that she had taken the child and fled the jurisdiction of the Missouri court. The Missouri juvenile court issued an order in June 1969, placing “temporary physical custody [89]*89of the child with the child’s father in the state of Florida subject to supervision(Italics added.) Neither the wife nor the child had notice of this proceeding, nor did they or anyone on their behalf appear before the Missouri court in connection with the order.

The husband then went to Canada with his brother and abducted the child off the street and brought him to Florida. In December 1969, the wife filed in this court and served on the husband her petition for a rule to show cause why the husband should not be held in contempt for his failure to pay child support and his failure to deliver the child to her according to the terms of the final judgment of divorce entered by this court in 1967. She prayed for travel money from Missouri to Florida and her return; her expenses of food and lodging while on the trip; a reasonable attorney’s fee; and her costs. The rule was issued.

The husband replied in written pleading, denying that he was in arrears on child support and setting up the order of the Missouri court as the basis of his legal right to custody. He alleged that the wife had failed to allow him to visit the child, thus breaching the Florida court’s final judgment on the right of the husband to visit the child. Hearings on the rule were held for two days on December 23 and 24, 1969.

The wife argued for custody on the following grounds: that she was a fit mother, and that custody of the child in her was in the child’s best interests. She urged the court that the law of the state of Florida favors the mother as the custodian of the child, when the mother is a fit custodian and it is in the child’s best interests. She further argued that the Missouri order was not entitled to full faith and credit, nor comity, because jurisdiction was lacking in that neither the wife nor the child had notice of the proceedings. The wife further argued that she and the child were not before the court when the matter was heard, nor were they in the physical jurisdiction of the Missouri court when the matter was heard and the order issued. She also argued that her ex-husband had unclean hands in equity because he had abducted the child from her in a foreign country and his resulting custody of the child on that basis was unlawful.

The husband alleged that the wife was unfit as a custodian of the child, for numerous moral, social, physical and economic reasons and that he was a fit person for custody. He argued that his former wife had unclean hands, in equity, because she had taken the child from the jurisdiction of the Missouri court and fled to a foreign country. He argued that he was legally entitled to custody based upon the Missouri court’s order awarding him temporary physical [90]*90custody. He alleged that the Florida court had no jurisdiction, or, in the alternative, if the Florida court did have jurisdiction, that the Florida court was required to give him custody under the full faith and credit clause of the United States constitution, or, in the alternative, upon comity. He denied that he was in arrears for child support.

The husband physically brought the child into this court, and the court had the opportunity to observe him closely and to talk with him at length. During the hearing, the court received a telephone call from a person in the administrative employ of the juvenile court in Missouri, who advised the court that she was calling on the request of the husband to advise the Florida court of the status of the case in Missouri. The husband gave evidence of his substantial income and economic resources. The court found that the wife’s income was small but that when it was taken with her home situation, it was enough to provide a suitable home for the child. The court found both parents to be fit custodians of the child, and the court awarded custody to the wife. She, in turn, upon the plea of the husband, stipulated that the child could remain with him over Christmas. The husband was ordered to return the child to the wife on December 27, 1969. The parties were ordered to conduct themselves in such a manner as to cause minimum upset to the child. Detailed visitation rights were prescribed in the court’s order. The court found some arrearage in child support, and ordered it paid. Attorney’s fees, money for travel, food and lodging, and costs were awarded to the wife.

The husband returned the child to the wife in Missouri, and then the husband simultaneously caused the Missouri juvenile court to re-activate the matter of custody in Missouri. In January 1970, simultaneously with the Missouri juvenile court’s activity, the husband moved in the Florida court for a rehearing, which motion was heard in February 1970, and at which time the Florida court deferred ruling and requested the submission of briefs from respective counsel. The attorney for the husband continually exhibited copies of continuing proceedings in the Missouri court concerning, among other things, social studies of the husband and the wife and their respective home environments. The wife moved the Florida court to hold the husband in contempt for his failure to pay to the child support arrearage and the attorney’s fees, costs and suit money. Investigations of the fitness of both parties were ordered by the Missouri court and subsequent hearings on fitness were set. The husband and wife were restrained and enjoined by the Missouri court in its written order from applying to any other court in an effort to change the order of the Missouri court. The [91]*91husband then brought this and other orders to Florida and in February 1970, the husband filed an action in the circuit court in and for Orange County, Florida, alleging the residency of the husband in Orange County, the former marriage of the husband and wife, the birth of their son, the pendency of the pleadings in the circuit court in and for Lake County, Florida, in this cause, and the complicated proceedings in the juvenile court in Missouri.

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Bluebook (online)
35 Fla. Supp. 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varvel-v-varvel-flacirct5lak-1971.