PAULINE CUSHEN, NOW LIPMAN, APPELLANT,
v.
JOHN MERILL CUSHEN, APPELLEE
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The court held that a petition for change of custody need not allege evidentiary facts, only ultimate facts sufficient to state a cause of action.
Appellant and appellee divorced, with appellant awarded custody. Appellee filed a petition for change of custody alleging appellant was not providing …
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The appellant is the respondent to a petition for change of custody of the child of the parties. The appellee-petitioner is the father of the child. Appellant and appel-lee were divorced in 1955 and appellant-wife was awarded custody. The petition alleges in general terms that the appellant is not providing a proper home for the child. Appellant moved to dismiss the petition upon the ground that it did not allege facts upon which the charge is based. The motion was denied and this interlocutory appeal is from that order.
The rules of civil procedure were designed to simplify pleading. If we are to retain in all their vigor the distinctions between “ultimate facts” and “evidentiary facts” we will frustrate one of the purposes of the rules. The test is whether the complaint (petition here) is sufficient to state a cause of action.
The petition informed the respondent of the nature of the cause of action, and no> prejudice having been demonstrated we affirm. See also Cravero Home Building Company v. Jaffe, Fla.App.1962, 142 So.2d 342, opinion not yet reported.
Affirmed.
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Wilson v. Sandstrom, 317 So. 2d 732 (Fla. 1975)…mandatory temporary injunction may be issued requiring specific performance of a contract. Bowling v. National Convoy and Trucking Co., 101 Fla. 634, 135 So. 541 (1931). See also, Price v. Gordon, 129 Fla. 715, 177 So. 276 (1937). In Daniel v. May, 143 So. 2d 536 (Fla.App. 2d 1962), a mandatory temporary injunction was issued to require the defendants to remove a building encroaching on a setback line. We conclude as a general rule, that a temporary mandatory injunction is proper where irreparable harm will…
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Hagan v. Sabal Palms, Inc., 186 So. 2d 302 (Fla. 2d DCA 1966)…141 So. 124, reaffirmed on rehearing, 105 Fla. 245, 143 So. 648; Tri-County Produce Distributors, Inc. v. Northeast Production Credit Association, Fla.App.1963, 160 So. 2d 46; Tolar v. Meyer, Fla.App.1957, 96 So. 2d 554; Daniel v. May, Fla.App.1962, 143 So. 2d 536; Davis v. Brewer, 1939, 135 Fla.752, 186 So. 207; Maule Industries v. Sheffield Steel Products, supra. Illustrative-are the Tri-County, the Daniel, and the-Tolar cases. In Tri-County appears the following; (text 160 So. 2d 50) : “The recording sta…
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United Contractors, Inc. v. United Constr. Corp., 187 So. 2d 695 (Fla. 2d DCA 1966)…105 Fla. 245, 141 So. 124, reaffirmed on rehearing, 143 So. 648; Tri-County Produce Distributors, Inc. v. Northeast Production Credit Association, Fla.App.1963, 160 So. 2d 46; Tolar v. Myer, Fla.App.1957, 96 So. 2d 554; Daniel v. May, Fla.App.1962, 143 So. 2d 536; Davis v. Brewer, 1939, 135 Fla. 752, 186 So. 207; Maule Industries, Inc. v. Sheffield Steel Products, Inc., Fla.App.1958, 105 So. 2d 798; Hagan v. Sabal Palms, Inc., 186 So. 2d 302, opinion filed March 23, 1966, 2d D.C.A. “Implied actual notice” i…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cravero Home Bldg. Co., Inc. v. Jaffe, 142 So. 2d 342 (Fla. 3d DCA 1962)