Yelton v. Yelton

295 So. 2d 119, 1974 Fla. App. LEXIS 7054

Opinion

PER CURIAM.

Upon review of the record on appeal, brief and oral argument of appellant-husband (appellee-wife not having filed a brief or otherwise appeared) we are of the opinion that the order of the trial court, granting custody to the mother when the child was not physically present in this state during any stage of the proceedings, was erroneous. See Castle v. Castle, Fla. App.1971, 247 So.2d 455, and authorities cited therein. The record, however, is insufficient to establish any prejudice to the appellant-husband by reason of having been in the military service at the time of the entry of the order under review. See Courtney v. Warner, Fla.App.1974, 290 So.2d 101.

Accordingly, that portion of the order adjudicating custody is vacated and set aside; that portion of the order granting temporary support to the wife is affirmed provided however that the trial judge may re-examine the amount of the award in light of the fact that such award may have been predicated upon that portion of the order pertaining to custody.

Reversed and remanded.

CROSS and MAGER, JJ., and ANDERSON, ALLEN C., Associate Judge, concur.