BETTY LOU DEWALT, APPELLANT,
v.
ALBERT RAYMOND DEWALT, APPELLEE
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In this interlocutory appeal of a child custody modification, the Florida Fourth District Court of Appeal held that absent an emergency, a court cannot modify custody provisions of a final dissolution judgment without proper pleading procedures, including a motion or petition by the moving party alleging facts demonstrating a substantial change in circumstances and that modification serves the children's best interests.
Absent an emergency, a court may not modify child custody provisions of a final judgment of dissolution except upon compliance with ordinary pleading procedures, requiring the moving party to file a motion or petition with appropriate allegations and providing the other party an opportunity to answer. The court must find both a substantial change in circumstances since the prior custody award and that modification serves the children's best interests.
[1] A court should not amend child custody provisions of a final judgment of dissolution absent an emergency, except upon the usual and ordinary procedures of pleading, allow…
[2] Modification of child custody provisions requires a pleading alleging facts demonstrating a substantial change in circumstances and that the change of custody is in the b…
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Join FLexlaw to unlock all legal intelligence“absent an emergency, the court should not amend the child custody provisions of a final judgment of dissolution except upon the usual and ordinary procedures of pleading, i. e., the issue raised by appropriate allegations in the moving party's motion or petition and an opportunity afforded to the other party to answer.”
States the core holding that procedural requirements must be followed for custody modifications
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Join FLexlaw to unlock all legal intelligenceApproximately eighteen months after a final judgment dissolving a marriage and awarding custody of two minor children (then ages one and five) to the …
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OWEN, Chief Judge.
Approximately eighteen months after a final judgment of dissolution of marriage in which custody of two minor children, then ages one and five, respectively, was awarded to appellant, the court entered its order (which is the subject of this interlocutory appeal) modifying the final judgment by changing custody of the minor children from appellant to appellee.
Appellant contends that it was error for the court to enter an order modifying the child custody provisions of the final judgment in the absence of any pleading filed by the appellee which appropriately presented this issue to the court. We agree that absent an emergency, the court should not amend the child custody provisions of a final judgment of dissolution except upon the usual and ordinary procedures of pleading, i. e., the issue raised by appropriate allegations in the moving party’s motion or petition and an opportunity afforded to the other party to answer. Purvis v. Carver, Fourth District Court of Appeal, 303 So. 2d 681, Opinion filed December 6, 1974; Teta v. Teta, Fla.App. 1974, 297 So. 2d 642; Williams v. Williams, Fla.App.1973, 272 So. 2d 827; Lourcey v. Lourcey, Fla.App.1971, 256 So. 2d 25; Scheer v. Scheer, Fla.App.1961, 132 So. 2d 456; Cortina v. Cortina, Fla.1957, 98 So. 2d 334; Kurtz v. Kurtz, 1933, 112 Fla. 619, 150 So. 785; 10 A, Fla.Jur., Dissolution of Marriage, Section 342, at page 466.
In this case there was no emergency. We find no pleading filed by appellee alleging facts to show (1) that there had been a substantial change in circumstances of the parties since the time of the prior award of custody, and (2) that a change of custody would be in the best interest of the child or children. Appellee did not even allege these ultimate facts, the proof of which are essential before child custody provisions of the final judgment may be modified. The issue not having been raised by the pleadings, it was error for the court to enter its order modifying the child custody provisions of the final judgment. Our decision in this respect makes it unnecessary for us to consider appellant’s further contention that, on the merits, the record shows that such change of custody was an abuse of discretion.
That portion of the order of December 6, 1973 modifying the child custody provisions of the final judgment by changing custody from appellant to appellee is reversed.
CROSS, J., concurs.
MAGER, J., concurs specially.
MAGER, Judge
(concurring specially) :
While I agree with the principles of law set forth in the majority opinion and concur in the ultimate disposition based upon the application of these principles to the particular facts, our determination herein should not be construed as precluding the trial court from reconsidering the matter of custody upon the appellee’s filing of appropriate pleadings and proof.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Elida Pauline Sardinas v. Sardinas, 401 So. 2d 909 (Fla. 4th DCA 1981)…to the modification of the decree.” An oral motion of the husband did not satisfy the pleading requirement. See also Jennings v. Jennings, 353 So. 2d 921 (Fla. 4th DCA 1978); Herbert v. Herbert, 304 So. 2d 465 (Fla. 4th DCA 1974); DeWalt v. DeWalt, 305 So. 2d 792 (Fla. 4th DCA 1975). Appellee counters with the argument that the term “reasonable right of visitation” is interpreted in Florida to mean the right to have the child away from the child’s home for short periods. Kranis v. Kranis, supra. Accordingly…
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Thomas v. Harris, 634 So. 2d 1136 (Fla. 1st DCA 1994)…of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond [*1137] and a hearing had with the necessary proof adduced. Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986); DeWalt v. DeWalt, 305 So. 2d 792 (Fla. 4th DCA 1975). Cortina v. Cortina, 98 So. 2d 334 (Fla.1957). Herein, the parties came to the hearing expecting to present testimony on the issue of the child’s school progress reports. Instead, they were questioned about cigarette smoking in t…
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Murphy v. Murphy, 351 So. 2d 383 (Fla. 4th DCA 1977)…ent need, unless a properly pleaded petition for change of custody is filed and the respondent given an opportunity to respond to the request for change of custody and a hearing had. if called for, with the necessary proof adduced. DeWalt v. DeWalt, 305 So. 2d 792 (Fla. 4th DCA 1975). The Order changing custody is REVERSED. ALDERMAN, C. J., and MOORE, J., concur.…
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
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- McCONNELL v. Brumos Porsche Audi Corp., 297 So. 2d 642 (Fla. 1st DCA 1974)
- Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)
- Scheer v. Scheer, 132 So. 2d 456 (Fla. 3d DCA 1961)
- Ercelle Mitchell Kurtz v. Kurtz, 112 Fla. 619 (Fla. 1933)
- Purvis v. Carver, 303 So. 2d 681 (Fla. 4th DCA 1974)
- Lourcey v. Lourcey, 256 So. 2d 25 (Fla. 1st DCA 1971)
- Williams v. Williams, 272 So. 2d 827 (Fla. 1st DCA 1973)