MARY ELIZABETH GREGORY, APPELLANT,
v.
WILLIAM A. GREGORY, JR., APPELLEE

Fla. 2d DCA | 1974-03-01
No. 73-746
BOARDMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.
292 So. 2d 50 Florida District Court of Appeal, Second District (1974) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A Florida appellate court vacated a custody award to the father and remanded for new proceedings, finding that the trial court erroneously denied the mother's motion for continuance and that the child's stated preference for the father was tainted by a vacation with excessive material indulgence immediately preceding the hearing.


Holding

The appellate court held that the trial court erred in denying the mother's motion for continuance and that the child's testimony regarding his preference for the father was tainted by exposure to exceptional vacation circumstances and excessive material indulgence, therefore the child's preference was not entitled to the great weight it would normally warrant. The case was remanded for further proceedings.


Headnotes

[1] A trial court errs by denying a motion for continuance when a child's preference in a custody determination may have been influenced by recent, exceptional circumstances.

[2] A child's preference in a custody dispute is not entitled to great weight when there is a significant probability that the preference has been tainted by excessive materi…

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“In such a case the preference of the child is not entitled to the "great weight" which it otherwise might warrant.”

Establishes that when a child's preference is tainted by recent material indulgence and vacation circumstances, it should not receive the ordinary deference courts typically give to children's custody preferences.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The Gregorys' 13-year-old son expressed a preference to live with his father. The custody hearing began one week after the boy returned from a six-wee…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
MANN, Chief Judge.

MANN, Chief Judge.

The son of the Gregorys is 13, and prefers to live with his father, a preference honored by the trial judge.

The hearing on custody began a week after the boy had returned from a six-week trip with his father and new stepmother. During the week between his return to Tampa and the hearing, the boy was out of school. He and his friends spent these days riding bicycles on busy streets to various shopping centers. Their activities included playing hide-and-seek in Maas Brothers and getting run out of Winn-Dixie by an employee who suspected them of shoplifting. All of these activities were related to the father, who seems to have received the information more as evidence against the mother — which undoubtedly it is- — than as evidence of the boy’s manipulation of his parents to gain his own ends. This evidence seems to us to reflect credit on neither parent, but rather to emphasize the undesirability of proceeding with a final custody determination at that time. The mother’s motion for continuance was denied. We think this was error.

To summarize this record it shows a situation quite the reverse from Taylor v. Schilt, Fla.App., 292 So. 2d 47. There both parents placed the children’s welfare before their own. Here there is considerable doubt that either parent does. We do not view as mountainous every molehill which the appellant’s lawyer finds impressive. For example, his assertion that custody cannot be changed absent a finding of the mother’s unfitness has been resolved adversely in Jayne v. Dennison, Fla.App.2d 1973, 284 So. 2d 237. A considerable task now awaits the trial judge to determine the best interest of the minor child in this case. Neither the father, who indulges the child, nor the mother, who absents herself from the home at night without making proper provision for the boy, is an ideal parent. We are considering a child whose testimony was taken at the end of a summer which began with the gift of a motorcycle and ended with a custody hearing intentionally scheduled immediately upon return . from a long vacation in the father’s motor home. There is too great a probability that long exposure to the father during vacation, as distinguished from normal working life, coupled with excessive material indulgence, has tainted the boy’s testimony as to preference. In such a case the preference of the child is not entitled to the “great weight” which it otherwise might warrant.

We expressly do not hold that the trial judge arrived at the wrong decision. Much of the testimony about the mother’s temper and inattention to the boy is, if credited, serious enough to warrant a change in custody, but she was deprived of two essentials. One is the consideration of the boy’s testimony free of the influence of recent exceptional circumstances unusually indulgent of his wants. The other is sufficient time to prepare to present testimony about the fitness of a step-mother who married the father during the vacation.

The order appealed from is vacated to the extent that it is final, reinstated as an order respecting temporary custody, and the cause is remanded for further proceedings consistent with this opinion.

BOARDMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Gall v. Gall, 336 So. 2d 10 (Fla. 2d DCA 1976)
    …already reached their-majority. The preference of a mature child concerning the parent with whom he or she would like to live is entitled to considerable weight, but it cannot control the disposition of custody. Gregory v. Gregory, Fla.App.2d, 1974, 292 So. 2d 50; Wilson v. Condra, Fla.App.1st, 1971, 255 So. 2d 702. To give a fourteen year old girl the unbridled discretion to choose the parent with whom she will live invites the possibility of serious disciplinary problems. Accordingly, the judgment is reve…
  • Taylor v. Schilt, 292 So. 2d 47 (Fla. 2d DCA 1974)
    …MANN, Chief Judge. We consider this case and Gregory v. Gregory, Fla.App., 292 So. 2d 50 together because both involve the important question of the weight to be given the preferences of children in custody litigation. In both cases we reverse conscientious trial judges. The records indicate, in Gregory, an overemphasis on the preferenc…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw