BETTY F. TOMPKINS, APPELLANT,
v.
H. W. TOMPKINS, JR., APPELLEE
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Betty Tompkins appealed a divorce decree that awarded custody of three minor children to her husband and declined to divide the parties' jointly owned property. The appellate court affirmed the custody award based on evidence of the mother's alcohol addiction and neglect, but clarified that the mother could later petition for custody of the two youngest children if she demonstrated full recovery.
The court affirmed the award of custody to the father, finding no abuse of discretion. The court also affirmed the chancellor's decision not to divide the joint property, as such division could be accomplished through separate proceedings after the divorce. However, the court held that the decree should be affirmed without prejudice to the mother to apply for custody of the two youngest children if she could demonstrate full recovery from her physical and mental health issues and alcohol addiction.
“the chancellor did not abuse any discretion in failing to divide their joint property, which could have been accomplished by either of the parties subsequent to the decree of divorce upon appropriate proceedings under Chap. 66, Fla.Stat., F.S.A.”
Establishes that property division is not mandatory at the time of divorce decree and can be pursued separately by either party through statutory procedures.
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Join FLexlaw to unlock all legal intelligenceThe parties were married and owned property as tenants by the entireties. At the time the divorce complaint was filed, they had three minor children a…
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The appellant wife appeals from a final decree in a divorce action, awarding a divorce to the appellee husband and the custody of the 3 minor children of the parties, and refusing to divide the joint property of the parties. She urges error in the entry of said decree in the giving of care, custody and control of the minor children to the husband, and in failing to divide the joint property.
The parties own certain property as tenants by the entireties and, upon the granting of the divorce, the parties became tenants in common pursuant to the provisions of § 689.15, Fla.Stat. F.S.A. The chancellor did not abuse any discretion in failing to divide their joint property, which could have been accomplished by either of the parties subsequent to the decree of divorce upon appropriate proceedings under Chap. 66, Fla.Stat., F.S.A.
At the time of the filing of the complaint in this cause, the 3 minor children of the parties were aged 5, 8 and 13. During the final hearing, the two oldest expressed a preference to remain with their father. Although the chancellor did not make a specific finding as to the unfitness of the mother, it is apparent [in his award of custody to the father of the 3 minor children, and in particular the 2 youngest] that he found that she was an unfit person to have their care, custody and control, it appearing in the record that in recent years she had become addicted to the use of alcohol and had become neglectful of the well-being of the children while in her care.
*770No error is found in the award of the custody of the children to the husband by the chancellor on the record before him. However, it is pointed out that in light of the principles announced by the Supreme Court of Florida in Todd v. Todd, Fla.1951, 56 So.2d 441, 29 A.L.R.2d 920, the final decree should be affirmed without prejudice to the wife to apply to the chancellor for custody of the 2 youngest children [counsel for the wife having conceded before this court that she could not expect to receive custody of the older child] at any time that she can demonstrate that she has fully recovered her physical and mental health, and is no longer addicted to the use of alcoholics. This opinion is not to be construed as directing that the chancellor should grant to the wife the custody of the 2 youngest children upon any such application, but only that the chancellor should reserve jurisdiction to make further inquiry into the matter at such time in the best interests of said children.
Affirmed with directions.
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Wilkerson v. Wilkerson, 179 So. 2d 592 (Fla. 2d DCA 1965)…. The wife in this case has argued that the chancellor failed to make a specific finding that she was unfit and therefore it was error not to award her custody of the children. The Third District’s opinion in Tompkins v. Tompkins, Fla.App.3, 1962, 145 So. 2d 769, answers this contention. In that case the chancellor awarded custody to the husband although he did not make a specific finding that the wife was unfit. The court affirm•ed, saying: “Although the chancellor did not make a specific finding as to the…
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Weinstein v. Doreene Weinstein, 148 So. 2d 737 (Fla. 3d DCA 1963)…ative but to follow the enactments of the Legislature. Therefore, the provision attempting to order the sale of this property must be reversed upon the authority of Valentine v. Valentine, Fla.1950, 45 So. 2d 885; Tompkins v. Tompkins, Fla.App.1962, 145 So. 2d 769. The chancellor awarded retroactive child support to the mother for a period of approximately 6 months prior to the entry of the final decree. It appears that this is the time period within which the mother was the sole provider for the child, and…
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Putman v. Putman, 154 So. 2d 717 (Fla. 3d DCA 1963)…by the entireties, it became a tendency in common, pursuant to the provisions of § 689.15 Fla.Stat., F.S.A., and the chancellor recognized the right of either party to seek partition [which would be in accord with Tompkins v. Tompkins, Fla.App.1962, 145 So. 2d 769]. . Neither party, in setting out their points on appeal, has complied with the provisions of Rule 3.7f(3), Florida Appellate Rules, 31 F.S.A., in reference to stating “points involved, in a clear and concise manner”. See: Serotkin v. Flavin, Fla.…
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- Todd v. Todd, 56 So. 2d 441 (Fla. 1951)