LARAINE ROSE DOANE, APPELLANT,
v.
JOSEPH A. DOANE, APPELLEE
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In this dissolution of marriage case, the Florida District Court of Appeal affirmed the trial court's denial of the wife's motion to vacate a default judgment but remanded for reconsideration of child support and custody awards, holding that inadequate evidence regarding the child's needs and best interests was considered.
The court held that the denial of the motion to vacate the default judgment was not an abuse of discretion, but that the child support award must be remanded for reconsideration because the trial court lacked adequate evidence regarding the parents' financial positions, the child's needs, and the child's best interests.
[1] A child born during a marriage is presumed to be the child of the husband, who is liable for the child's support, absent denial of paternity.
[2] A trial court has broad discretion in determining child custody and support.
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Join FLexlaw to unlock all legal intelligence“Broad discretion is vested in the trial court in determining matters of custody and support [...] However, in order to provide a basis upon which the court can exercise such discretion, there must be some evidence concerning the parents' respective financial positions, the needs of the child, and most importantly the child's welfare and best interests.”
Establishes that while trial courts have discretion in custody and support cases, that discretion must be grounded in adequate evidence about parental finances, child needs, and the child's best interests.
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Join FLexlaw to unlock all legal intelligenceThe parties were married on October 19, 1970, and their daughter Cheryl was born three days later on October 22, 1970. The husband filed for dissoluti…
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In this dissolution of marriage action, appellant-wife has assigned as error *47the inadequacy of the amount awarded as child support and the denial of her motion to vacate a default judgment that had been entered against her. We find no abuse of discretion in the court’s denial of appellant’s motion to vacate the default judgment, but our review of the record indicates that this cause should be remanded for further consideration by the trial court on the issues of child custody and support.
Appellee-husband filed petition for dissolution of marriage on February IS, 1972, alleging that the parties were married on October 19, 1970, and that one child Cheryl, was born on October 22, 1970. The husband subsequently obtained a default judgment which the wife sought to vacate upon proper motion. The court denied the motion and proceeded to a final hearing on the matter. Judgment was entered dissolving the marriage, approving an ante-nuptial agreement between the parties, and requiring appellee-husband to pay child support to appellant-wife on a weekly basis.
Although Cheryl was born only three days after the marriage, the husband did not deny his paternity of the child either by pleading or proof. Cheryl, therefore, is presumed to be his child and he is liable for her support. Minick v. Minick, 1933, 111 Fla. 469, 149 So. 483; Walborsky v. Walborsky, Fla.App.1967, 197 So.2d 853.
No evidence was introduced on the issue of custody of the minor child, and the sole evidence concerning the issue of child support was the following testimony by the husband on direct examination:
“Q. Now, during the pendency of this marriage was any child or children born?
“A. Yes. Three days after we were married.
“Q. What is that child’s name ?
“A. Cheryl Doane.
“Q. What are you willing to pay for child support per week?
“A. I believe under the circumstances $10.00 a week would be a fair amount.”
Because of the default judgment, the court refused to consider any evidence or testimony from appellant-wife and would not permit her counsel to cross-examine appel-lee-husband. By its final judgment the court ordered appellee-husband to pay child support to the wife in the amount of $10.00 per week, although the judgment failed to make an express award of custody of the child.
Broad discretion is vested in the trial court in determining matters of custody and support. Frazier v. Frazier, 1933, 109 Fla. 164, 147 So. 464; Rogoff v. Rogoff, Fla.App.1959, 115 So.2d 456; Burnett v. Burnett, Fla.App.1967, 197 So.2d 854; Gunter v. Gunter, Fla.App.1969, 219 So.2d 743; King v. King, Fla.App.1973, 271 So.2d 159. However, in order to provide a basis upon which the court can exercise such discretion, there must be some evidence concerning the parents’ respective financial positions, the needs of the child, and most importantly the child’s welfare and best interests. It is manifest from the record that the trial court did not have before it adequate evidence relating to these matters.
Bearing in mind that a determination of the child’s best interests is of special concern in cases of this type, it would seem that the testimony of the child’s natural mother would be of aid to the court, irrespective of the default judgment against her. The court should consider, upon remand, such further evidence relating to child custody and support as is necessary to determine the child’s best interests. The final judgment is affirmed except to the extent that it requires the appellee to pay appellant $10.00 per week for child support. The cause is remanded for further proceedings and entry of an amendment to the final judgment providing for custody *48and support of said minor child as it appears to the court to be in the child’s best interest.
Affirmed in part; reversed in part and remanded.
REED, C. J., and CROSS, J., concur.
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Citator
Cited By (18 total)
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Andrews v. Andrews, 624 So. 2d 391 (Fla. 2d DCA 1993)…h the sensitive issue of child custody. Chase v. Chase, 519 So. 2d 637 (Fla. 2d DCA1988). In such cases, the testimony of a child’s natural mother will almost always aid the court in fairly determining the child’s best interests. See Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA1973). Although Ms. Andrews is an ineffective and uncooperative litigant, she may still be the better parent for custody of the couple’s two young children. Especially in the context of a modification of child custody, it would seem cri…
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Duckworth v. Ingrid O. Duckworth, 414 So. 2d 562 (Fla. 3d DCA 1982)…ties; to wit: the minor children. Decisions awarding custody must be made in the best interests of the children involved; thus, the distinction between the instant cause and the cases cited by appellant in his brief. As was stated in Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973), “Bearing in mind that a determination of the child’s best interests is of special concern in cases of this type, it would seem that the testimony of the child’s natural mother would be of aid to the court, irrespective of the de…
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Gaetano Longo v. Longo, 576 So. 2d 402 (Fla. 2d DCA 1991)…ed and to encourage parents to share the rights and responsibilities of childrearing.” A natural parent should not be precluded from asserting valid parental rights, irrespective of a default judgment entered against him. See Rhines; Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973). Finally, the final judgment granted relief which was not sought in the petition for dissolution, specifically, a termination of the husband’s visitation rights. A party against whom a default is entered can only be said to have…
Previewing 3 of 18 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)
- Minick v. Minick, 111 Fla. 469 (Fla. 1933)
- Rogoff v. Rogoff, 115 So. 2d 456 (Fla. 3d DCA 1959)
- Tomasello v. Nisbet, 110 Fla. 256 (Fla. 1933)
- Tomasello v. Nisbet, 111 Fla. 620 (Fla. 1933)
- In re Est. of John J. Stephens, 197 So. 2d 854 (Fla. 1st DCA 1967)
- King v. King, 271 So. 2d 159 (Fla. 1st DCA 1973)
- Gunter v. Gunter, 219 So. 2d 743 (Fla. 1st DCA 1969)
- Brown v. State, 197 So. 2d 853 (Fla. 1st DCA 1967)