LESLIE ARDELE GOLLER DILLINGHAM, APPELLANT,
v.
PHILLIP IVAN DILLINGHAM, APPELLEE
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.
In this Florida family law appeal, the court affirmed a dissolution of marriage judgment in part but reversed the trial court's restriction on the former wife's ability to relocate with the minor child. The court held that because relocation was not raised in the pleadings or litigated by the parties, the trial court erred in restricting it in the final judgment.
The trial court erred in restricting the former wife's ability to relocate because the issue was not raised by the pleadings nor litigated by the parties. A decree adjudicating issues not raised by the pleadings and not litigated is voidable on appeal, and accordingly, the restriction on relocation was reversed.
[1] Child custody determinations must be made in accordance with the best interests of the child, encompassing an evaluation of all factors affecting the child's welfare.
[2] A trial court may modify child custody awards if circumstances require.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A decree adjudicating issues not raised by the pleadings and not litigated by the parties during the hearing [is] voidable on appeal.”
Establishes the fundamental principle that trial courts cannot decide matters outside the scope of pleadings and litigation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn a divorce proceeding between Leslie Ardele Goller Dillingham and Phillip Ivan Dillingham, the trial court granted the former wife's requests regard…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Child Custody Determination cases and more on FLexlaw
PER CURIAM.
We affirm the corrected final judgment of dissolution of marriage in part, and reverse in part. We agree with appellant that trial courts should determine all matters regarding child custody in accordance with the best interests of the child, defined to “include an evaluation of all factors affecting the welfare and interests of the child.” § 61.13(3), Fla.Stat. (1993). Here the former wife has no basis to complain about the scope of the inquiry, however, since the trial court granted her requests regarding parental responsibility, primary residence, and visitation. The minor child remains, moreover, under the protective aegis of the trial court which can modify its award if circumstances require. § 61.13(2)(c), Fla.Stat. (1993).
The trial court erred in restricting the former wife’s ability to relocate, because the issue of relocation was not raised by the pleadings nor litigated. “A decree adjudicating issues not raised by the pleadings and not litigated by the parties during the hearing [is] voidable on appeal.” Gligorijevic v. Gligorijevic, 427 So. 2d 1060, 1063 (Fla. 2d DCA 1983) (reversing the portions of the circuit court’s order regarding child support and visitation rights). See also Wallace v. Wallace, 606 So. 2d 504 (Fla. 4th DCA 1992) (reversing the portion of the lower court’s order that required the former husband to bring the rent and utility payments current where such relief was not requested and evidence was not submitted on the issue); Rusher v. Rice, 573 So. 2d 182 (Fla. 2d DCA 1991) (vacating the portion of the trial court’s order declining to enforce a modification of custody decree entered in North Carolina that awarded custody to the mother where “[t]hat issue was not raised by the pleadings nor litigated by the parties”).
Paragraph five of the corrected final judgment which contains the restriction on relocation is accordingly reversed. See Mize v. Mize, 621 So. 2d 417 (Fla.1993) (assuming that a “final judgment incorporating] a prohibition against the relocation of the child ... reflect[s] that the issue was litigated”). The corrected final judgment of dissolution of marriage is otherwise affirmed.
BOOTH, JOANOS and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Keitel v. Keitel, 724 So. 2d 1255 (Fla. 4th DCA 1999)…ted. When a request for relief is not requested in the pleadings, nor supported by evidence adduced at a hearing, it is error to award relief on such an issue. Wallace v. Wallace, 605 So. 2d 504, 505 (Fla. 4th DCA 1992). In Dillingham v. Dillingham, 667 So. 2d 337, 337-38 (Fla. 1st DCA 1995), the court stated, “The trial court erred in restricting the former wife’s ability to relocate, because the issue of relocation was not raised by the pleadings nor litigated.” Here, at the hearing, the court stated, “You…
-
Mahmoud Ismail Ayyash v. Ayyash, 700 So. 2d 752 (Fla. 5th DCA 1997)…. Murphy, 621 So. 2d 455 (Fla. 4th DCA 1993). . See Duchesneau v. Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997); Williams v. Williams, 676 So. 2d 493 (Fla. 5th DCA 1996); Allan v. Allan, 666 So. 2d 170 (Fla. 2d DCA 1996); Dillingham v. Dillingham, 667 So. 2d 337 (Fla. 1st DCA 1995); Silvestri v. Silvestri, 309 So. 2d 29 (Fla. 3d DCA 1975); Ebaugh v. Ebaugh, 282 So. 2d 14 (Fla. 4th DCA 1973). . Callaghan, Contemporary Family Law, Principles, Policy and Practice, Vol. IV, § 39.07; Crippen v. Crippen, 508 So.…
-
Swearingen v. Swearingen, 253 So. 3d 1244 (Fla. 1st DCA 2018)
Authorities Cited
- Mize v. Mize, 621 So. 2d 417 (Fla. 1993)
- Gligorijevic v. Gligorijevic, 427 So. 2d 1060 (Fla. 2d DCA 1983)
- Canterbury v. State, 606 So. 2d 504 (Fla. 1st DCA 1992)
- Rusher v. Charmaine Davis Rice and Jeff Rice, 573 So. 2d 182 (Fla. 2d DCA 1991)