ROSEMARIE SCALZO, APPELLANT,
v.
ANTHONY E. SCALZO, APPELLEE

Fla. 4th DCA | 1981-04-01
No. 80-411
HURLEY, J., and SHARP, G. KENDALL, Associate Judge, concur.
395 So. 2d 1272 Florida District Court of Appeal, Fourth District (1981) Positive Treatment
Cited by 6 cases

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Synopsis

In this family law appeal, the Florida District Court of Appeal reversed a dissolution of marriage judgment and remanded for a new trial due to multiple inconsistencies and unsupported findings by the trial court, particularly regarding the wife's fitness for custody, her alleged adultery, and her ability to support herself.


Holding

The court reversed and remanded for a new trial on all issues except the dissolution of the marriage itself, finding that the trial court's findings lacked record support, were internally inconsistent (finding the wife unfit yet awarding her custody), and that split custody was improper without compelling cause.


Headnotes

[1] A trial court's findings of fact in a dissolution of marriage proceeding must be supported by record evidence.

[2] A final judgment of dissolution of marriage may be reversed and remanded for a new trial on all issues except the dissolution itself when the trial court's findings are u…

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Key Quotes

“the trial court's findings come to us with a presumption of correctness, there must be some record support for them, and we can find no support for the findings of adultery as the primary cause of the breakup, nor for the wife's ability to support herself”

Establishes that appellate review requires record support for trial court findings despite the presumption of correctness.

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Facts & Procedural History

The parties were married approximately ten years and had three children (ages 11, 9, and 5 at dissolution). The husband was self-employed with limited…

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Opinion of the Court
MOORE, Judge.

MOORE, Judge.

The appellant, Rosemarie Scalzo, appeals from a final judgment of dissolution of marriage. Unfortunately, the appellee has not favored us with an appearance on appeal.

The trial judge labored long and tediously as he presided over a bitterly contested custody battle which saw the appellant retain and discharge five lawyers before settling on her present counsel, who, at post-judgment hearings, also had a co-counsel. Although we sympathize with the court and feel that his twenty-one page final judgment manifests his sincere desire to see justice accomplished, we reluctantly reverse and remand this cause for a new trial on all issues embodied within the pleadings except for the dissolution of the marriage.

The parties were married approximately ten years when the original complaint was filed in March, 1977. The final hearing was necessarily conducted on a piecemeal basis, concluding in March, 1980. Three children, whose ages at the time of dissolution were eleven, nine and five, were bom of the union. During the marriage, the husband was self employed in a variety of business enterprises, none of which brought him great financial success. The wife never engaged in outside employment, but confined herself to the duties of housewife and mother. In the final judgment, the trial court made the following findings: that the husband is a fit and proper person to have custody and control of the children and that the two younger children would therefore be placed in his custody; that the eldest child “has demonstrated an unhealthy attitude toward both parents”, but since the child’s attitude toward her father was one of “overt hostility”, the wife should be awarded custody of that child; that the wife is not a fit and proper person to have custody of the children; that the husband be granted the use and occupancy of the marital home subject to future partition; that the wife’s adultery and her persistence in an adulterous relationship was the primary cause of the breakup of the marriage; that because of her adultery and other reasons, the wife is not entitled to any form of alimony; that the wife has demonstrated an ability to support herself; and, that the wife is not entitled to an award of attorneys fees and costs.

We have reviewed the entire record which has been provided us. A number of hearings were apparently conducted without the benefit of a court reporter, but these seem to have been concerned with temporary matters and the parties’ financial situation. Although the trial court’s findings come to us with a presumption of correctness, there must be some record support for them, and we can find no support for the findings of adultery as the primary cause of the breakup, nor for the wife’s ability to support herself. Additionally, the final judgment is inconsistent in finding that the wife is not a fit and proper person to have custody of the children, and yet it awards her custody of the eleven year old daughter. This is particularly disconcerting in light of the Supreme Court’s pronouncement that split custody should not be awarded “except for the most compelling cause”. Arons v. Arons, 94 So. 2d 849, 853 (Fla.1957). These matters stand unrebut-ted by the appellee and it does not appear that the unrecorded evidence would support these findings. Furthermore, during oral argument counsel advised this Court that the appellee has now returned the children to their mother, and yet he remains in sole possession of the marital home.

We are convinced that the interrelationship of these erroneous findings with the trial court’s other findings and conclusions demand a new trial on all issues except for the finding that the marriage is irretrievably broken.

REVERSED and REMANDED.

HURLEY, J., and SHARP, G. KENDALL, Associate Judge, concur.


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Citator

Cited By

  • Eckroade v. Eckroade, 570 So. 2d 1347 (Fla. 3d DCA 1990)
    …t issue. We offer as guidance to the trial court for consideration on remand the following principles: The final judgment must be supported by competent and substantial evidence, Kelly v. Kelly, 557 So. 2d 625 (Fla. 4th DCA 1990); Scalzo v. Scalzo, 395 So. 2d 1272 (Fla. 4th DCA 1981), and the “hotly contested” valuations of property must be consistent with the evidence. Carroll v. Carroll, 471 So. 2d 1358, 1361 (Fla. 3d DCA), review denied 482 So. 2d 347 (Fla. 1985). The only evidence before the court of the…
  • Annantae McCOY v. McCOY, 400 So. 2d 859 (Fla. 4th DCA 1981)
    …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 ent…
  • Cobb v. Cobb, 408 So. 2d 241 (Fla. 4th DCA 1981)
    …sulted in split custody, the daughter staying with the mother and the custody of the sons lodged with the father. Split custody should not be awarded except for the most compelling reasons. Arons v. Arons, 94 So. 2d 849 (Fla.1957); Scalzo v. Scalzo, 395 So. 2d 1272 (Fla. 4th DCA 1981). See also, McCoy v. McCoy, 400 So. 2d 859 (Fla. 4th DCA 1981). In Arons, the Florida Supreme Court explained: We are impressed with the fact too that the decree of the chancellor, which divides the children of the parties, will…

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