JOYCE D. YOUNG, APPELLANT,
v.
CHARLES ALLEN YOUNG, APPELLEE

Fla. 1st DCA | 1974-10-08
No. U-20
SPECTOR, Acting C. J., and JOHNSON, J., concur.
305 So. 2d 92 Florida District Court of Appeal, First District (1974) Positive Treatment
Cited by 10 cases

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Synopsis

In this family law appeal, the trial court modified a divorce judgment to award custody of two minor children to the father based on findings that the mother engaged in sexual relations with a married man in the home where the children resided, failing to provide a fit and proper moral atmosphere. The appellate court affirmed the custody modification but reversed the award of the mother's attorney fees to be paid by the father.


Holding

The court affirmed the modification of custody to the father, finding the mother failed to provide a fit and proper moral atmosphere for the children. However, the court reversed the award of the mother's attorney fees to be paid by the father, holding that while the attorney was entitled to compensation, it was error to require the father to pay those fees given the circumstances and the mother's conduct that prompted the modification proceedings.


Headnotes

[1] A parent's extramarital sexual relations occurring in the presence of minor children can constitute a failure to provide a fit and proper moral atmosphere for the childre…

[2] A child's awareness of a parent's extramarital sexual relations can be a factor in determining the child's well-being.

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Key Quotes

“The Wife candidly testified before the Court of her love for a married man (who was separated from his wife). The Wife further testified that said lover spent some nights in her home, sleeping in her bedroom and of their having sexual relations in said home, although the minor children were present in the home.”

Establishes the factual basis for the trial court's findings regarding the mother's conduct that allegedly created an unfit moral atmosphere for the children.

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Facts & Procedural History

Joyce D. Young and Charles Allen Young were divorced. The initial divorce judgment awarded custody of their two minor children to the mother. The moth…

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Opinion of the Court
BOYER, Judge.

BOYER, Judge.

Appellant takes this appeal to review an order of the Circuit Judge by which he modified a final judgment of dissolution of marriage by removing custody of the children of the parties from the mother and vesting custody in the father. In the order appealed the able trial judge made the following pertinent findings:

“The Wife candidly testified before the Court of her love for a married man (who was separated from his wife). The Wife further testified that said lover spent some nights in her home, sleeping in her bedroom and of their having sexual relations in said home, although the minor children were present in the home. The Wife further testified that on occasion, sexual relations arose spontaneously because of her love for him, and that she hoped to marry this man upon his attaining his freedom from his present wife. The Wife further testified that she attempted to be discreet in her relationship with her lover. “Both parties agreed for the Court to speak privately with the oldest of the two minor children, to wit: Charles Allen Young, III, who is approximately 8 years of age, and agreed for said conference to be out of the presence of counsel and the parties and requested that no transcript be made of said child’s statements. At the request of said parties, the Court spoke with the said minor child, among other matters, to assist the Court in determining the extent of said child’s knowledge of the conditions in the home and other places, and to apprize the Court of the children’s well being. From the evidence and from the said child’s conference, the Court found that Charles Allen Young, III, was a bright, intelligent young boy who was fully apprized of his mother and the other man spending nights in the same bedroom sleeping in the same bed, and such conditions existing in the home and elsewhere. The Court further found that his scholastic ability was excellent.

“That the Wife, Joyce D. Young, failed to provide a fit and proper moral atmosphere and home for the minor children of the parties, and that the welfare of the minor children would best be served by being in the custody of the father, who is a fit and proper person to have said custody.

“The Court being apprized that the mores and customs in regard to sexual be-haviour between unmarried adults where minor children resided have allegedly now become commonplace, fails to find that such alleged mores and customs and alleged common practice thereof, is conducive to the moral and spiritual well being, or proper for the welfare of the minor children. The Court further finds that the Wife allowed her love for a man to diminish her fitness as a mother to her minor children, and the Wife is not a fit and proper person at this time to have the care, custody and control of the minor children.”

Based upon those findings the final judgment which had been theretofore entered was modified and the permanent care, custody and control of the minor children was awarded to the husband, appellee.

We affirm on authority of Johnson v. Johnson, Fla.App. 1st 1974, 293 So. 2d 770 and Dinkel v. Dinkel, Fla.App. 1st 1974, 305 So. 2d 90 and the cases therein cited.

However, notwithstanding the appellant’s conduct which clearly gave rise to the modification proceedings and notwithstanding the entry of the order of modification here appealed, the trial court awarded attorney’s fees to the appellant’s attorney, requiring the appellee to pay same. In so doing, under the circumstances of this case, he abused his discretion and erred. Unquestionably the appellant’s attorney was entitled to compensation but not at the expense of appellee. We accordingly, as to attorney's fees, reverse.

Appellant has filed herein a Petition for Attorney’s Fees incident to this appeal. That petition is denied. The appellee has failed to file such a petition, accordingly there is no vehicle by which we might consider attorney’s fees for the prevailing party incident to this appeal. However, appel-lee is entitled to have such costs as shall have been incurred incident to this appeal taxed by appropriate proceedings in the trial court.

The order appealed is therefore

Affirmed in part and reversed in part.

SPECTOR, Acting C. J., and JOHNSON, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Beaman v. Beaman, 393 So. 2d 19 (Fla. 3d DCA 1980)
    …t is established law that custody and visitation rights may be changed whenever it is shown that children are exposed to situations which are potentially damaging to them. See Rosenberg v. Rosenberg, 365 So. 2d 185 (Fla.3d DCA 1978), Young v. Young, 305 So. 2d 92 (Fla.1st DCA 1974) and Niles v. Niles, 299 So. 2d 162 (Fla.2d DCA 1974). As written the limitation would require such a hearing in order for it to be enforced. Appellant’s remaining points on appeal do not present reversible error under the holding…
  • Slate v. Slate, 333 So. 2d 48 (Fla. 1st DCA 1976)
    …PER CURIAM. AFFIRMED. Young v. Young, 305 So. 2d 92 (Fla.App. 1st, 1974). RAWLS, Acting C. J., SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.…
  • Commander v. Commander, 493 So. 2d 530 (Fla. 1st DCA 1986)
    …ered in the determination of a change of custody); Hackley, supra, at p. 448 (a “live-in arrangement” deemed a “negative factor” in the consideration of overnight visitation). See also Smothers v. Smothers, 281 So. 2d 359 (Fla.1973); Young v. Young, 305 So. 2d 92 (Fla.1st DCA 1974). We have also considered the notion that the subject order may be vulnerable because there has been no evidence that the visitation demanded by the appellant has adversely affected the children. Presumably, of course, no such evi…

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