DOROTHY C. STEWART, APPELLANT,
v.
ALAN C. STEWART, APPELLEE
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The appellate court affirmed the trial court's decision to change child custody from the mother to the father, finding sufficient evidence of changed circumstances and that the change was in the child's best interest, while also affirming the denial of the mother's request for increased alimony and enforcement of medical expenses.
The appellate court affirmed the trial court's decision to change child custody from the mother to the father, finding competent, substantial evidence supported the change based on the child's welfare.
[1] A trial court's decision regarding child custody will not be overturned on appeal if there is competent, substantial evidence to support the conclusion that a change in c…
[2] A provision in a final judgment requiring payment of medical and dental expenses is enforceable for legitimate, incurred expenses, even if the parties are antagonistic.
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Join FLexlaw to unlock all legal intelligenceFollowing a divorce, the former wife sought increased alimony and enforcement of medical expense payments, while the former husband sought a change in…
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The appellant is a former wife of the appellee. They were divorced by a judgment of the Circuit Court of Dade County on May 15, 1969. On November 10, 1971, the appellee filed his petition for change of custody of the minor child of the marriage. The appellant filed a petition for modificátion of the final judgment in order to obtain an increase in her alimony and support payments, and in a separate motion requested an order to enforce the final judgment by requiring the appellee to comply with a provision providing for payment of medical and dental expenses. After hearing testimony, the trial court entered its order for modification of the final judgment. This order provided that the right of custody be transferred from the appellant to the appellee.1 The order further provided for a reduction in the amount of child support.2 The court also denied appellant’s motion to require the payment of medical and dental expenses as provided by the final judgment.3
The main thrust of this interlocutory appeal asserts that the trial judge erroneously changed the custody of the minor child from the mother to the father because: (1) there was insufficient evidence, and, (2) there was no finding of any material change in the circumstances relating to the care and welfare of the minor child. The minor child involved in this dispute is ten years old. The initial judgment of the trial court placed the minor child in the custody of the mother. Over two years later, after extensive testimony, the trial *866judge reached the conclusion that conditions had so changed that the welfare of the child required a change in custody. An appellate court will not interfere with a decision of a trial judge unless it appears that there is no competent, substantial evidence to support the conclusion reached by the trial judge. Gunter v. Gunter, Fla.App.1969, 219 So.2d 743. Our review of the record convinces us that there was competent, substantial evidence before the trial judge which, if believed by him, was a sufficient basis for the conclusion that the welfare of the child was being adversely affected by appellant’s vengeful attitudes and actions toward the appellee. There was also evidence that the development of the child had not been wholesome during the period after the final judgment and prior to the petition for modification. We hold simply that there is evidence in this record which supports the decision of the trial judge that (1) there was a change in circumstances relating to the care and welfare of the minor child, and (2) that the best interests of the child would be served by a change in custody. It should be observed that under these bitter and unfortunate circumstances, the only real guideline for judicial action as to custody is the court’s determination of what is best for the child. Albritton v. Carraway, Fla.App.1968, 215 So.2d 69.
Appellant has presented a second point which urges error in the trial court’s refusal to enforce the provision of the final judgment requiring the husband to pay medical and dental expenses of the wife. This provision has previously been set forth in footnote #3. Initially it should be pointed out that the wisdom of the provision is suspect in that it invites controversy between two bitterly antagonistic parties. Further, we hold that the portion of the provision which states that, “ . . . no future medical expenses shall be incurred without first consulting the defendant” is so indefinite in meaning that it must be considered surplusage. Cf. Greene v. Greene, Fla.App.1967, 199 So.2d 147. The record reveals that appellee was informed of appellant’s need for medical treatment, but that he did not agree. However, no action was taken to offer substituted medical or dental services nor were any suggested. Indeed, the record contains proof that appellant has legitimately incurred doctors’ bills in the amount of $1,855 which appellee refuses to pay. The record also reveals that appellant needs dental work in the amount of $400. We hold that an amended order should be entered on appellant’s petition for the enforcement of the final judgment requiring the husband to pay the amounts above specified, and that the trial judge should, upon the direction of this court, either amend the final judgment to provide for the payment of a specific amount or amounts, or to provide some other method of determining the legitimacy of appellant’s future medical and dental expenses. It is apparent that since the appellee now has custody of the minor child, the requirement that appellee pay the medical and dental bills of the minor child need not be changed.
Appellant’s third point urges error because the trial court refused to modify the final judgment to increase alimony and support payments. In view of the decisions already reached, and after a review of the briefs and the record, we find that this point is without merit.
The order is affirmed in part, reversed in part, and remanded with directions to enter an amended order requiring the payment to the appellant of the amounts specified for medical and dental expenses, and with directions to modify the final judgment heretofore entered in this cause as to future medical and dental expenses of the appellant.
Affirmed in part, reversed in part, and remanded with directions.
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…3 (citation omitted; emphasis in original). Other Third District cases in which there is discussion of "detriment” based on the facts of the particular case include Walfish v. Wolfish, 383 So. 2d 274, 276 (Fla. 3d DCA 1980), and Stewart v. Stewart, 261 So. 2d 864, 866 (Fla. 3d DCA 1972). . This court has, to be sure, outlined particular factual circumstances when detriment must be shown. See Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964). But, as the above-cited cases show, a showing of "detriment” is no…
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Arie Lionel Bosem v. Bosem, 269 So. 2d 758 (Fla. 3d DCA 1972)…e children become twenty-one years old. See Perla v. Perla, Fla.1952, 58 So. 2d 689. Additionally, the medical provision should be limited to the payment for other than usual and minor medical bills. Cf. Stewart v. Stewart, Fla.App.1972, 3rd D.C.A., 261 So. 2d 864, filed May 9, 1972. As reasonable and intelligent people, the appellant and the appellee can probably determine what is major and unusual, but if this is not possible, the court may be called upon to decide. The requirement that the husband maintai…
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Berlin v. Dawna Michele Berlin, 386 So. 2d 577 (Fla. 3d DCA 1980)…e in custody where there are aggravating circumstances, such as: alienation of affection, Brust v. Brust, 275 So. 2d 598 (Fla.1st DCA 1973); or where such frustration is accompanied by a vengeful attitude of the custodial parent, Stewart v. Stewart, 261 So. 2d 864 (Fla.3d DCA 1972). No suggestion is made nor does the record disclose such aggravating factors in this case. THE BEST INTERESTS OF THE CHILDREN Of all the criteria prescribed by Section 61.13(3), Florida Statutes (1979), the best interests of the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hunter v. State, 215 So. 2d 69 (Fla. 3d DCA 1968)
- Gunter v. Gunter, 219 So. 2d 743 (Fla. 1st DCA 1969)
- Greene v. Greene, 199 So. 2d 147 (Fla. 1st DCA 1967)