G. KIRK LEWIS, APPELLANT,
v.
LESLIE HICKS LEWIS, APPELLEE
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The Florida Supreme Court affirmed an order overruling a demurrer to a mother's petition seeking modification of a child custody decree. The court found the petition's allegations insufficient to warrant further consideration or testimony.
No, the allegations in the mother's petition were insufficient to warrant the chancellor's serious consideration or the taking of further testimony regarding modification of the custody order.
“This appeal here is from an order overruling a demurrer to a petition by a mother defendant in a divorce suit praying for a modification of a decree awarding the custody of an infant boy to the father incident to the decree of divorce in the suit instituted by the father against the mother.”
Describes the procedural posture and the nature of the appeal.
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Join FLexlaw to unlock all legal intelligenceA mother, defendant in a divorce suit, filed a petition to modify a custody decree that awarded custody of their son to the father. The petition was f…
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This appeal here is from an order overruling a demurrer to a petition by a mother defendant in’ a divorce suit praying for a modification of a decree awarding the custody of an infant boy to the father incident to the decree of divorce in the suit instituted by the father against the mother.
The petition was filed after the decree was' signed by the Chancellor but before it was recorded. The decree was entered upon testimony taken Ex parte after decree pro con-fesso had been entered.
The allegations of the petition were insufficient to warrant the chancellor in giving the application serious consideration and presented material facts and circumstances not theretofore presented to the court sufficient to warrant- the chancellor in making an' order requiring the taking of further testimony upon which to determine whether or not the interest of the child would be best served by a modification of the order involved.
The order appealed from should be affirmed.
It is so ordered.
Affirmed.
Davis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.
(Concurring) — The law applicable to cases like this was recently summarized by this Court in Frazier *463v. Frazier, 147 Sou. Rep. 464. The petition was good as against a demurrer under the rule laid down in that case which controls the proposition to be decided here.
Davis, C. J.,
(Concurring) — The law applicable to cases like this was recently summarized by this Court in Frazier v. Frazier, 147 Sou. Rep. 464. The petition was good as against a demurrer under the rule laid down in that case which controls the proposition to be decided here.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gossett v. Ullendorff, 114 Fla. 159 (Fla. 1934)…cts averred which the complainant sought to have stricken. Usually the setting aside of a decree pro confesso rests In the court’s sound discretion to be exercised according to the circumstances of each case. See Bongiovanni v. Spoto, 111 Fla. 144, 149 Sou. Rep. 10. In the case at bar the circumstances in which the decree was entered, even if the clerk was authorized to enter it, were of such character that a refusal to set the order aside ■constituted an abuse of the discretion. The answer which ■contained t…
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Mikesell v. Mikesell, 137 Fla. 108 (Fla. 1939)…e chancellor, and the same will not be set aside unless an abuse of that discretion is shown. See Gossett v. Ullendorff, 114 Fla. 159, 154 South. Rep. 177; Weathersbee v. Dekle, 102 Fla. 1057, 136 South. Rep. 708; Bongiovanni v. Spoto, 111 Fla. 144, 149 South. Rep. 10. For these reasons, I am unable to concur in the opinion of a majority of the Court. Terrell, C. J., concurs.…
Authorities Cited
- Frazier v. Frazier, 109 Fla. 164 (Fla. 1933)