VICKI ELAINE LISENBY, APPELLANT,
v.
CURTIS LEON LISENBY, APPELLEE
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A Florida appellate court reversed a custody modification order that changed custody of an eight-year-old child from mother to father, finding no substantial competent evidence to support the change after the mother had maintained custody for five years following the 1977 divorce.
The court held that substantial competent evidence did not support the custody modification. The mother's post-divorce romantic relationships and marriage, without evidence of adverse effects on the child or changes in living conditions, were insufficient to justify changing custody from a parent who had maintained custody for five years.
[1] A modification of a final dissolution judgment changing child custody requires substantial competent evidence demonstrating that the change is in the best interest of the…
[2] A finding that a change in child custody is in the best interest of the child, without further elaboration, is insufficient to support such a modification.
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Join FLexlaw to unlock all legal intelligence“The substantial evidence required for a change of custody once decreed, as distinguished from that necessary to move the judge's discretion in the first instance, is simply not present.”
Establishes the higher evidentiary burden needed to modify an existing custody decree versus making an initial custody determination.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1977 with custody awarded to the mother. In March 1982, the father sought to modify the custody order. The mother had lived wi…
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ROBERT P. SMITH, Jr., Chief Judge.
The mother appeals from the circuit court’s order entered in March 1982 modifying the final dissolution judgment, entered in 1977, to change custody of the parties’ eight-year-old daughter from the mother to the father. In the order changing custody the circuit judge found only that “it is in the best interest of the child” that custody be changed from the mother, who had custody five years, to the father. There being no elaboration of this finding in the order, we have examined the record for substantial competent evidence supporting, on any conceivable ground, this change in custodial arrangements. We find no evidence having that effect. Although the mother and daughter lived with another man for some eighteen months after the divorce, and the mother subsequently had sexual relations with a new boyfriend whom she married shortly before the hearing, there is no evidence of extramarital sexual activity in the presence of the child or of a substantial change in the child’s living conditions that in fact adversely affected the child, who has a normal loving relationship with her mother. The substantial evidence required for a change of custody once decreed, as distinguished from that necessary to move the judge’s discretion in the first instance, is simply not present. Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982).
The appellant mother’s brief reveals that the testimony of one witness, operator of the day care center where the child stayed during the mother’s working hours, was not reported and so not transcribed and included in the record. Appellant represents that the subject of this testimony was appellant’s tardiness several times, up to an hour, in picking the child up from the center. The appellee father’s brief makes no contention that this missing testimony supplied evidence that the mother’s custody adversely affected the child.
The order removing the child from the mother’s custody is therefore REVERSED, and custody is restored to the mother. Any petition for rehearing will be filed within five days.
THOMPSON, J., concurs.
SHIVERS, J., dissents, with opinion.
SHIVERS, Judge,
dissenting.
I respectfully dissent. The able trial judge’s order comes to us clothed with a presumption of correctness. We do not have a complete record, as some of the testimony was not transcribed and was not stipulated. I do not see how we can reverse the trial judge, who not only heard all of the testimony but observed the witnesses as they testified. However, the trial judge should explicate his finding that the best interest of the child warrants modification. I would remand for this purpose.
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McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)…eral welfare of the children will be served by a change of custody, but that it mil be detrimental to the children if custody is not changed. (Emphasis added.) 220 So. 2d at 439. To similar effect are Johnson v. Johnson, supra; Lisenby v. Lisenby, 419 So. 2d 354 (Fla. 1st DCA 1982); Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982). In Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980), the court, stated: The order changing custody need not include a finding that the prior custodial parent…
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Loleta Robin Johnson v. Johnson, 422 So. 2d 1013 (Fla. 1st DCA 1982)…e record for evidence tending to show, as required for change of custody previously ordered by judicial decree, that the mother’s custody substantially changed the child’s living conditions in a way adversely affecting the child. Lisenby v. Lisenby, 419 So. 2d 354 (Fla. 1st DCA 1982); Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982). Putting aside credibility questions as beyond our province, we find substantial competent evidence that the child’s welfare was in fact adversely affected in the mothe…
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Williams v. State, 456 So. 2d 974 (Fla. 3d DCA 1984)…atutes (Supp.1982) or relinquish jurisdiction over the first half of the sentence. Mobley v. State, 409 So. 2d 1031 (Fla.1982); Saname v. State, 448 So. 2d 14 (Fla. 1st DCA 1984); Abbott v. State, 421 So. 2d 24 (Fla. 1st DCA 1982); Hampton v. State, 419 So. 2d 354 (Fla. 4th DCA 1982). Retention of jurisdiction vacated; remanded with instructions.…
Authorities Cited
- Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982)