DAWNA MICHELLE BERLIN, APPELLANT,
v.
JEROME BERLIN, APPELLEE
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In a custody dispute following divorce, the Florida appellate court affirmed the trial court's January 1978 order changing custody from mother to father based on substantial changes in circumstances, but reversed the trial court's subsequent February 1978 order modifying that custody arrangement because it was entered without motion, notice, or hearing.
The January 18, 1978 order changing custody to the father is affirmed as amply supported by evidence. The February 8, 1978 order is reversed because a trial court may not modify a custody provision without a motion and new evidence before it, regardless of whether the original order was intended as temporary or permanent.
[1] A trial court's order changing child custody will be affirmed if supported by evidence demonstrating it is in the best interests of the children.
[2] A trial court may not modify a previously entered child custody provision without a motion and new evidence before it.
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Join FLexlaw to unlock all legal intelligence“It is apparent that the court's order of January 18, 1978, which found it in the best interests of the children to change custody to the father, is amply supported by evidence on this record.”
Establishes that the original custody change order was sufficiently supported by the evidence and properly entered
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Join FLexlaw to unlock all legal intelligenceThe parties' 1974 divorce judgment awarded custody of two children (Brett, age 9, and Sharon, age 7) to the mother with liberal visitation to the fath…
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PER CURIAM.
These three consolidated appeals arise from two, separate circuit court orders, each pertaining to custody of the same children.
The marriage of the parties was dissolved by a 1974 final judgment, incorporating a separation agreement giving custody of the children (Brett, now nine years of age, and Sharon, now seven years of age) to the mother, with liberal visitation rights awarded the father. In 1977, the father filed a motion to change custody based on substantial changes in the parties’ circumstances affecting the welfare of the children.
The evidence showed that the husband’s new wife and the children have a good relationship, that the father can offer a stable family atmosphere, that the mother intended to move the children to Jacksonville thereby effectively reducing the father’s visitation rights and that the mother worked, with the children being sent to day care centers. Following several hearings and extensive testimony, including that of a court-appointed psychiatrist who interviewed parents and children, the court, by order dated January 18, 1978, found it in the best interests of the children to change custody to the father.
On February 8,1978, without notice to the parties, the court, on its own motion, entered a second order amending the first order to reflect that the father be given “temporary custody” until the end of the school year or until June 10, 1978, whichever should come first, in order to allow proper continuity until the mother was psychiatrically and financially able to care properly for the children.
It is apparent that the court’s order of January 18, 1978, which found it in the best interests of the children to change custody to the father, is amply supported by evidence on this record. We, therefore, affirm this order on the basis of the principle in Bargeon v. Bargeon, 153 So. 2d 10 (Fla.2d DCA 1963), and Rudolph v. Rudolph, 146 So. 2d 397 (Fla.3d DCA 1962).
The question presented by the husband’s appeal from the order dated February 8, 1978, is whether the trial court had jurisdiction to enter the order where the time for rehearing had passed, where no matter was before the court by way of motion and where no further hearing was held. The wife, appellee in the appeal from the February 8, 1978, order, urges that the first order (of January 18, 1978) was, in actuality, a temporary order and that the court could, at any time, change the custody provisions contained therein. It is not necessary to determine whether the order was meant to be temporary or permanent at the time it was entered inasmuch as we hold that the trial court may not change a custody provision previously entered without a motion and new evidence before it. See Scheer v. Scheer, 132 So. 2d 456.(Fla.3d DCA 1961), and Morrison v. Morrison, 122 So. 2d 199 (Fla. 1st DCA 1960).
Therefore, the order of February 8, 1978, is reversed.
Affirmed in part; reversed in part.
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Cited By
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…la. 3d DCA 1988); Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987); Hussain v. Hussain, 493 So. 2d 1062 (Fla. 3d DCA 1986); Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Berlin v. Berlin, 369 So. 2d 434 (Fla. 3d DCA 1979); Jacobs v. Ross, 304 So. 2d 542 (Fla. 3d DCA 1974); Wilner v. Wilner, 167 So. 2d 234 (Fla. 3d DCA 1964); Avery v. Heermance, 138 So. 2d 775 (Fla. 3d DCA 1962). Plainly a showing of “detriment” is not a required element of a motion…
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Berlin v. Dawna Michele Berlin, 386 So. 2d 577 (Fla. 3d DCA 1980)…ders, 376 So. 2d 880 (Fla.1st DCA 1979). Accordingly, the judgment modifying custody, entered August 30, 1979, is reversed; the order awarding permanent custody to the father, entered January 18, 1978, is reinstated. Reversed. . Berlin v. Berlin, 369 So. 2d 434 (Fla.3d DCA 1979). . Allegations with respect to a temporary custody award to the father were subject to a motion to strike. On the father’s cross-appeal presented in the first appearance of this case (see note 1), this court determined that the tr…
Authorities Cited
- Scheer v. Scheer, 132 So. 2d 456 (Fla. 3d DCA 1961)
- Morrison v. Morrison, 122 So. 2d 199 (Fla. 1st DCA 1960)
- Bargeon v. Bargeon, 153 So. 2d 10 (Fla. 2d DCA 1963)
- Robinson v. Mayme E. Monahan and Paul Hamersmid, 146 So. 2d 397 (Fla. 3d DCA 1962)
- Hanna Iris Rudolph v. Rudolph, 146 So. 2d 397 (Fla. 3d DCA 1962)