FRANK H. WILSON, APPELLANT,
v.
MAE B. CONDRA, FORMERLY MAE B. WILSON, APPELLEE
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In this Florida divorce appeal, the court reversed a trial judge's decision to modify custody of a minor child from the father to the mother, holding that the mother's remarriage and acquisition of a suitable home, standing alone, do not constitute a material change in circumstances sufficient to justify custody modification under state law.
The court held that the mother's remarriage and acquisition of a suitable home do not, standing alone, constitute a material change in circumstances justifying modification of custody from father to mother. The court also held that the award of visitation rights and summer custody to the elderly couple had no basis in the record and was set aside.
[1] A final award of child custody is res judicata as to all matters known at the time of the decree and will not be modified unless there is a material change in circumstanc…
[2] A mother's remarriage and acquisition of a suitable home do not, in themselves, constitute a material change in circumstances justifying a change of child custody from th…
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Join FLexlaw to unlock all legal intelligence“The final award of custody of a minor child is res judicata to all matters that are involved in and known at the time of the decree. It will not be modified to change the custody of the minor child to the other parent except where there is a material change in circumstances (or material facts unknown to the court at the time of the decree) and it is shown to be essential to the welfare of the child.”
Establishes the legal standard for modifying custody awards in Florida
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Join FLexlaw to unlock all legal intelligenceThe parents divorced in 1961 with custody awarded to the father of their one-year-old son. In 1965, visitation rights were expanded for the mother. In…
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Defendant-husband appeals from an order modifying a final decree of divorce by transferring custody of the minor child from the father to the mother.
On December 11, 1959, the mother filed suit for divorce. In January of 1960 the mother and father entered into a stipulation which provided that the custody of the couple’s one-year-old son should be with the father. This stipulation provided that the mother would not be barred from seeking custody of the son at some later date. The final divorce decree was entered in June 1961. Custody of the son was awarded to the father. In 1965 the mother and father agreed to expand the mother’s visitation rights. In 1970 the mother filed a petition seeking custody of the son. In September 1970 a final judgment was entered modifying the custody provision of the divorce decree. Custody was awarded to the mother with visitation rights to the father and an elderly couple who had cared for the son.
The primary point on appeal is whether the record discloses that the trial judge abused his discretion in modifying the custody provisions of the divorce judgment.
*703A chancellor is vested with the right to exercise a broad discretion in entering an initial child custody decree. He considers all of the facts and the best interests of the minor child. The final award of custody of a minor child is res judicata to all matters that are involved in and known at the time of the decree. It will not be modified to change the custody of the minor child to the other parent except where there is a material change in circumstances (or material facts unknown to the court at the time of the decree) and it is shown to be essential to the- welfare of the child.1
Have the above requirements of the age-old law of this State been satisfied? We think not.
The record reflects that both the mother and father have remarried. The mother has a stable home and is now in a position to provide for the child. Reflecting upon similar circumstances in Ritsi v. Ritsi,2 the Third District Court of Appeal stated:
“When a father has been granted custody under a divorce decree, remarriage of the mother and acquisition by her of a suitable home are not changes of circumstances which of themselves justify a change of custody from the father to her. Phillips v. Phillips, 153 Fla. 133, 13 So.2d 922; Belford v. Belford, 159 Fla. 547, 32 So.2d 312.”
Such is the instant case.
The now twelve-year-old son did express a desire to live with his mother, but his wishes are only one factor to be considered.3 The rights of a parent will not be disregarded in order to gratify the wishes of a child.4 Through the years the father has always provided for the child’s physical and spiritual needs and he continues to so do. We find no material change in circumstances which inure to the benefit of the child.
The second point on appeal deals with a provision in the modified custody award which grants visitation rights and a two weeks summer custody to an elderly couple.
The father placed the son with this couple during the child’s younger years. This well-intentioned couple are devoted to the child. However, we find no basis in the record upon which an award to the couple of visitation rights and a two weeks summer custody can stand. This provision is set aside.
The decree appealed is reversed with directions to enter a judgment granting custody to the father with liberal visitation rights to the mother.
Reversed and remanded.
CARROLL, DONALD, Acting Chief Judge, and MASON, ERNEST E., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…DCA 1983); Stearns v. Szikney, 386 So. 2d 592 (Fla. 5th DCA 1980); Berlin v. Berlin, 386 So. 2d 577 (Fla. 3d DCA 1980); Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980); Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974); Wilson v. Condra, 255 So. 2d 702 (Fla. 1st DCA 1971); Bennett v. Bennett, 73 So. 2d 274 (Fla.1954). In satisfying this burden, it is essential that the movant rely only on changes occurring after entry of the original final judgment of dissolution because that judgment is res judic…
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In re Gregory v. Gregory, 313 So. 2d 735 (Fla. 1975)…n circumstances after the divorce which warranted and required modification of the original decree for the welfare, interests and guidance of the child. He so decided and he was correct. See § 61.13, Florida Statutes; Wilson v. Condra, Fla.App.1971, 255 So. 2d 702; Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (Fla.1933); Frye v. Frye, Fla.App.1968, 205 So. 2d 310; Goldstein v. Goldstein, Fla.App. 1972, 264 So. 2d 49, 52, and Hutchins v. Hutchins, Fla.App. 1969, 220 So. 2d 438. The order changing custody the…
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Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980)…nd’s remarriage nor his increased material wealth constitutes a change in circumstances sufficient to justify modification of custody. Anderson v. Anderson, 309 So. 2d 1 (Fla.1975); Belford v. Belford, supra; Ritsi v. Ritsi, supra; Wilson v. Condra, 255 So. 2d 702 (Fla. 1st DCA 1971). Applying these principles to the present case, and upon our independent review of the written reports which formed the basis for the trial court’s decision, we hold that there was not substantial evidence to support a finding t…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frazier v. Frazier, 109 Fla. 164 (Fla. 1933)
- Belford v. Belford, 159 Fla. 547 (Fla. 1947)
- Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964)
- Phillips v. Phillips, 153 Fla. 133 (Fla. 1943)
- Foster v. Sharpe, 114 So. 2d 373 (Fla. 3d DCA 1959)
- Garner v. Garner, 193 So. 2d 673 (Fla. 2d DCA 1967)
- Adele Fredel v. Irwin F. Fredel, 151 So. 2d 863 (Fla. 3d DCA 1963)