RHONDA L. ANDREWS, APPELLANT,
v.
DAVID B. ANDREWS, JR., APPELLEE

Fla. 2d DCA | 1993-09-22
No. 92-02602
CAMPBELL, A.C.J., and THREADGILL, J., concur.
624 So. 2d 391 Florida District Court of Appeal, Second District (1993) Caution
Cited by 38 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A mother appeals a postdissolution custody order transferring the children to the father. The Florida appellate court reverses and remands because the trial court abused its discretion by entering a default against the mother and prohibiting her from presenting any evidence, despite her noncompliance with court orders, holding that default sanctions in child custody cases jeopardize the best interests of children.


Holding

The trial court abused its discretion. While the mother's noncompliance with court orders would justify sanctions in a standard civil case, default sanctions that prevent presentation of evidence on the issue of the children's best interests are inappropriate in child custody cases. The trial court may impose other sanctions that punish the parent without jeopardizing the children's best interests interests.


Headnotes

[1] A trial court abuses its discretion by refusing to set aside a default and prohibiting a party from presenting evidence in a child custody modification proceeding.

[2] Decisions affecting child custody require a careful consideration of the best interests of the child.

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Key Quotes

“Decisions affecting child custody require a careful consideration of the best interests of the child.”

Establishes the overriding legal principle governing custody cases under Florida law.

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Facts & Procedural History

A marital dissolution judgment in April 1989 granted the mother primary residential custody of two children. The father moved in September 1991 to mod…

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Opinion of the Court
ALTENBERND, Judge.

[*392] ALTENBERND, Judge.

Rhonda L. Andrews appeals a postdissolution order transferring primary residential custody of the couple’s two children to the father, David B. Andrews. Although we leave custody of these children with the father pending further proceedings on remand, we reverse and remand because the trial court abused its discretion by refusing to set aside a default and by prohibiting Ms. Andrews from presenting any evidence at the final hearing. Ms. Andrews’ failure to comply with some prior orders of the court might have warranted a default against her in a standard civil action, but it did not justify a de facto default against the minor children concerning the issue of their best interests.

A final judgment dissolving the marriage between the parties was entered on April 12, 1989. That judgment incorporated the terms of a marital settlement agreement which placed primary residential custody of the children with the mother. The parties experienced chronic problems concerning the father’s visitation rights. In September 1991, the father moved for a permanent change in child custody.

During this renewed dispute over custody of the children, the mother has occasionally been represented by one attorney or another and has also attempted to represent herself. There is no question that she has failed to fully comply with court orders and that her actions have extended these proceedings and made them more complex. We recognize that her conduct would challenge the patience of the most understanding judge. We also recognize that the trial court is empowered to enter appropriate sanctions under Florida Rule of Civil Procedure 1.200(c).

In this case, the trial court sanctioned Ms. Andrews by striking her pleadings and dismissing all of her pending motions. She was prohibited from presenting any witnesses at the hearing to determine whether the custody of the children should be transferred to Mr. Andrews. At the hearing, Ms. Andrews was represented by a new attorney. - The trial court declined to set aside the default. The attorney was allowed to cross-examine Mr. Andrews’ witnesses. When Mr. Andrews’ attorney called Ms. Andrews as a witness, her attorney was not allowed to cross-examine Ms. Andrews beyond the narrow scope of direct examination.

Decisions affecting child custody require a careful consideration of the best interests of the child. § 61.13, Fla.Stat. (1991). This court has previously discouraged trial courts from using default as a sanction when dealing with the sensitive issue of child custody. Chase v. Chase, 519 So. 2d 637 (Fla. 2d DCA1988). In such cases, the testimony of a child’s natural mother will almost always aid the court in fairly determining the child’s best interests. See Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA1973). Although Ms. Andrews is an ineffective and uncooperative litigant, she may still be the better parent for custody of the couple’s two young children. Especially in the context of a modification of child custody, it would seem critical for the trial court to hear the full testimony of the parent who was initially granted custody. See Collins v. Newton, 362 So. 2d 174 (Fla. 2d DCA1978) (modification of custody requires greater showing than would be needed at original trial).

This opinion does not foreclose the trial court on remand from imposing sanctions that will punish the parent without jeopardizing the best interests of the children. The trial court may also consider whether the services of a guardian ad litem would be useful in this case.

Reversed and remanded.

CAMPBELL, A.C.J., and THREADGILL, J., concur.


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Citator

Cited By (21 total)

  • Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002)
    …stody based on a parent’s default. See Seibert v. Seibert, 436 So. 2d 1104, 1105 (Fla. 4th DCA 1983). See also Begens v. Begens, 617 So. 2d 360, 361 (Fla. 4th DCA 1993); Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998); Andrews v. Andrews, 624 So. 2d 391, 392 (Fla. 2d DCA 1993); Sloan v. Sloan, 604 So. 2d 862, 863 (Fla. 2d DCA 1992); Longo, 576 So. 2d at 403; Dellavecchia v. Dellavecchia, 547 So. 2d 287, 287 (Fla. 2d DCA 1989); Duckworth, 414 So. 2d at 563; Doane v. Doane, 279 So. 2d 46, 47 (Fla. 4t…
  • Childers v. Riley, 823 So. 2d 246 (Fla. 4th DCA 2002)
    …mporary support and that his pleadings therefore be stricken from the record. Nevertheless, the court can'determine the best interests of children in the custody equation only by considering each parent as possible custodian. See Andrews v. Andrews, 624 So. 2d 391 (Fla. 2d DCA 1993) (although parent may be “ineffective and uncooperative” as litigant, parent may still be better custodian of party’s children). Moreover, section 61.13(2)(b)(2), Florida Statutes (2001), provides that “[t]he court shall order that…
  • Reynaldo Castillo v. Castillo, 950 So. 2d 527 (Fla. 4th DCA 2007)
    …o reasonable person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.1980). “Decisions affecting child custody require a careful consideration of the best interests of the child.” Andrews v. Andrews, 624 So. 2d 391, 392 (Fla. 2d DCA 1993); § 61.13(3), Fla. Stat. (2005). However, section 61.13(3) does not require the trial court to make specific written findings in a custody decision. See Murphy v. Murphy, 621 So. 2d 455, 456-57 (Fla. 4th DCA 1993). In this c…

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