HANNA IRIS RUDOLPH, APPELLANT,
v.
NELSON CLARK RUDOLPH, APPELLEE

Fla. 3d DCA | 1962-11-13
No. 62-143
Before PEARSON, TILLMAN, C. J., and CARROLL and BARKDULL, JJ.
146 So. 2d 397 Florida District Court of Appeal, Third District (1962) Caution
Cited by 22 cases

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Synopsis

In this 1962 Florida divorce case, the appellate court affirmed the divorce grant but reversed key provisions regarding child custody, support payments, and cost allocation. The court held that divided custody is not in the child's best interests and modified the financial arrangements to ensure adequate support for the wife and child.


Holding

The court affirmed the divorce decree but reversed provisions regarding custody, support, and costs. Full custody should be awarded to the mother with reasonable visitation rights to the father; the husband should pay all mortgage payments (half as child support, half as his own property interest); the mother and child retain the right to live in the home; and the husband should pay all court costs including a $126.50 refund to the wife.


Key Quotes

“In custody matters, however, it is not the rights of the parties which are of paramount importance, but the best interests of the minor.”

Establishes the fundamental principle that child custody decisions prioritize the child's welfare over parental rights, supporting reversal of divided custody.

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Facts & Procedural History

The parties married in 1958 and had one child (age 2 at decree). The husband earned $75/week as a medical technician employed by his father and lived …

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Opinion of the Court
PEARSON, TILLMAN, Chief Judge.

PEARSON, TILLMAN, Chief Judge.

This is an appeal by the wife who was the plaintiff in the trial court from a final decree of divorce which awarded the divorce to the defendant-counterclaimant husband. Also in controversy are an amendment to the final decree and an order on costs.

The plaintiff-wife and defendant-husband were married in 1958. There was one child born to the marriage — a boy, who was two years old at the time of the final decree.

The parties owned a residence as an estate by the entireties for which the monthly mortgage payments are $84.26. The amended final decree provided that from then on the parties owned the residence as tenants in common. By informal agreement it appears that the wife and child are still living in this home, but no provision for such occupancy was made in the decree nor has any provision been made for the payment of the monthly mortgage payments.

It is apparent from a reading of this record that the parties lived on a scale some*399what above that which the husband’s earnings as a medical technician would provide. The husband worked for his father at a salary of a hundred dollars a week. Prior to the divorce the husband, at the wife’s insistence, left his father’s employ. He was, however, unable to earn a sufficient income to meet the family’s expenses and thereafter returned to his father’s employ in his old capacity and at his previous salary. Four months prior to the initiation of the present suit (when it can be assumed the domestic troubles had reached a stage where divorce was a distinct possibility), the salary of the appellee-husband was reduced to $75.00 a week.

The wife’s first point on appeal urges that the chancellor erred in granting the divorce to her husband. It is her contention that the record does not contain sufficient evidence to establish grounds for divorce in the husband and that conversely she established grounds for divorce. We have reviewed the record and are convinced that there is sufficient evidence to-sustain the findings of the chancellor. Under these conditions an appellate court will not substitute its judgment for that of the chancellor. Town of Medley v. Seminole Rock Products, Inc., Fla.App.1962, 138 So.2d 534.

Since the separation of parties, the husband has lived for the most part with his parents where he is not required to contribute to that family’s expenses. Nothing prejudicial to the wife is suggested in this arrangement. The husband’s father is a prominent physician well-able to help his son, and it is apparent that he is doing so, both by providing employment and by making it possible for him to maintain himself without great expense. The result appears to be that the husband, although receiving only $75.00 a week in salary, is receiving benefits which amount to much more. Under these conditions, the total provision for his ex-wife and child of only $25.00 a week1 is inadequate in view of the fact that the appellee is not presently required to make the mortgage payments on the home. Cf., Klein v. Klein, Fla.App. 1960, 122 So.2d 205.

The final decree provides for a split-custody arrangement for the minor child of the parties. The applicable portion of the decree provides:

“That custody of the minor child, PAUL ALLAN RUDOLPH, is hereby awarded to the Counter-defendant-plaintiff, Wife, HANNA IRIS RUDOLPH, reserving unto the Plusband reasonable rights of visitation and specifically meaning thereby that the Husband shall have custody and control of said minor child from 6:00 o’clock P.M. on each Friday until 7:00 o ’clock P.M. the following Sunday of each weekend, commencing Friday, January 5, 1962.”

There is no doubt but that the chancellor was attempting by this arrangement to be fair to each of the parties. In custody matters, however, it is not the rights of the parties which are of paramount importance, but the best interests of the minor. Hurst v. Hurst, 158 Fla. 43, 27 So.2d 749. Divided custody which involves periodic removal from familiar surroundings is not desirable nor conducive to a child’s welfare. Hurst v. Hurst, supra; McCann v. McCann, 167 Md. 167, 173 A. 7 (1934); McLemore v. McLemore, 346 S.W.2d 722 (Ky. 1961); Bronner v. Bronner, 278 S.W.2d 530 (7th Dist.Ct.Civ.App.Tex.1954); Morgan v. Morgan, 139 Cal.App.2d 704, 294 P.2d 45 (1st Dist.Ct.App.1956). See Lee v. Lee, Fla.1950, 43 So.2d 904. Since there is nothing in the record to demonstrate that the wife is not a proper person to have the custody of the young child of the parties, the decree should award full custody to *400her with reasonable rights of visitation in the father. Hurst v. Hurst, supra.

The first decree provided that each party should bear one-half of the costs, although the husband was directed to pay the wife’s attorney’s fees. Thereafter, the cost provision was amended to provide that the husband should pay all of the costs except $126.50 which the wife was directed to pay. The husband is gainfully employed and the wife is not. She is to be burdened with the care of a young child. Under such circumstances it is proper to provide that the husband pay the court costs. The fact that the equities in the cause were with the husband does not alter this situation. Stem v. Stern, Fla.1951, 50 So.2d 119. Therefore, we think that the decree should have directed the husband to pay the entire cost of the proceeding.

In accordance with the views herein set forth, the decree as amended is affirmed in part and reversed in part. The provision granting a decree of divorce to the defendant-husband upon his counterclaim is affirmed. The provision for divided custody of the child is reversed as to that portion granting custody to the father for two days and two nights of each week, with directions to the chancellor to enter an amended decree providing for full custody in the mother and for such rights of visitation in the father as the chancellor shall find reasonable. That portion of the final decree providing for a cash payment of $15.00 a week for support of the child and $10.00 a week alimony for the wife is affirmed. The amended decree shall provide that the husband pay all mortgage payments from the date of the amended decree, together with interest, taxes and insurance. One-half of each of such payments shall be considered as child support, and the remaining one-half shall be considered as the husband’s payment upon his own interest in the property. The amended decree shall provide for the right of the mother and the son to live in the former residence of the parties so long as the wife shall maintain it as a home for herself and the child. Each party shall be restrained from transferring his or her interest in the property until such time as the chancellor may find that conditions have so changed that such a transfer is in the best interests of all concerned. The decree shall direct that the appellee-husband pay all costs, including a refund to the wife of $126.50 advanced by her. In each particular not herein mentioned the decree is affirmed.

Affirmed in part, reversed in part and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (22 total)

  • Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964)
    …court when the final decree was entered. We are inclined to agree with the chancellor that the extensive visitation provided for in the decree may amount to “divided custody,” which is not considered a good policy. Rudolph v. Rudolph, Fla.App. 1962, 146 So. 2d 397. But the remedy for that, if one is needed, is to reduce the visitation rather than to change the custody. Accordingly the order of September 23, 1963 is affirmed wherein it discharges the rule to show cause against the respondent relating to failu…
  • Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)
    …ituation confronting the children during each successive period of custody and at and after each exchange would be rendered even more distressing by the fact that their mother and father are so mutually antagonistic. Moreover, in Rudolph v. Rudolph, 146 So. 2d 397 (Fla. 3d DCA 1962), this court made it very clear that, contrary to the judgment below, these considerations may not be overridden by a concern, however well-intended, that justice be done to the parents. At 146 So. 2d 399, we said: There is no dou…
  • Gerscovich v. Eugenio Alberto Gerscovich, 406 So. 2d 1150 (Fla. 5th DCA 1981)
    …ain applied to invalidate rotating of custody every six months in Wonsetler v. Wonsetler, 240 So. 2d 870 (Fla.2d DCA 1970). Custody of a two year old child to the father on weekends arid to the mother on weekdays was reversed in Rudolph v. Rudolph, 146 So. 2d 397 (Fla.3d DCA 1962). The court reiterated the time honored rule that “it is not the rights of the parties which are of paramount importance, but the best interests of the minor.” Id. at 399. The court further pointed out: Divided custody which involv…

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