WALTER ELWOOD UNGER, APPELLANT,
v.
ANN UNGER, APPELLEE

Fla. 3d DCA | 1975-01-14
No. 74-783
Before PEARSON and NATHAN, JJ., and GREEN, ROBERT A., Jr., Associate Judge.
306 So. 2d 540 Florida District Court of Appeal, Third District (1975) Positive Treatment
Cited by 14 cases

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Synopsis

This case involves an appeal from an order changing a minor child's custody from his father to his mother. The appellate court reversed the lower court's decision, finding that the succession of temporary custody orders and the uncertainty surrounding the mother's new home were not in the child's best interest.


Holding

The appellate court held that the trial court erred in changing custody. The court found that the child was doing well with the father and that the uncertainty and succession of temporary custody orders were detrimental to the child's welfare.


Headnotes

[1] The welfare of the child is the overriding consideration in all child custody decisions.

[2] Appellate courts will not disturb a trial court's child custody findings unless error is clearly made to appear, due to the trial court's wide discretion and the opportun…

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Key Quotes

“In all child custody decisions, the welfare of the child is the overriding consideration.”

Establishes the primary legal standard for custody determinations.

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Facts & Procedural History

The parties divorced in 1972, and the father was granted temporary custody of their four-year-old son in 1973. This decision was based on initial repo…

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Opinion of the Court
PEARSON, Judge.

PEARSON, Judge.

This appeal is from an order changing custody of a minor child from the father to the mother. The father is the appellant. The child is a boy now four years old. The parties were married in 1969 and the marriage was dissolved in 1972. The appellant has had custody of the child since February 9, 1973.1

The trial court has a wide discretion in child custody determinations, so that an appellate court will not disturb such findings unless error is clearly made to appear. Mehaffey v. Mehaffey, 143 Fla. 157, 196 So. 416 (1940). This rule is based upon the fact that ordinarily testimo ny upon the issue is taken before the trial judge. In all child custody decisions, the welfare of the child is the overriding consideration. Pacheco v. Pacheco, Fla. 1971, 246 So. 2d 778.

The history of this case indicates that the custody decision was based upon successive reports by social service agencies. Upon the dissolution of the marriage, the court retained jurisdiction of the parties and the subject matter in order to refer the matter of the custody of the minor child to the Division of Family Services of the State of Florida. The Division of Family Services was ordered to conduct an investigation and prepare a report for the court.

Pursuant to said final judgment, the Division of Family Services conducted an investigation, and a report was submitted to the court. The report contained the following recommendation:

“Since both parties to this action have now agreed that the child, Christopher, should remain with his father, Walter Unger, for the present time, there is no question as to our recommendations at this time. Walter Unger appears able and willing to provide a home for his son, and adequate babysitting arrangements have been made while he is at work. Evelyn Ann Unger Mohler feels that her present marriage is in danger of breaking up and that the atmosphere of the home under the influence of her new husband is unhealthy for her child. Under these circumstances she willingly turned over custody of her child to Walter Unger for the time being.”

A hearing was held and an order was entered granting temporary custody to the appellant father. The order went further to state that after the child had lived with the father for six months the Division of Family Services should conduct a reinvestigation and again report back to the court and also that upon motion of either party, the court would hold an additional custody hearing. Christopher and his father moved from Florida to Virginia and then some ten months after the court’s order, the appellee filed a motion for termination of temporary custody. A hearing was held and on the 2nd day of February, 1974, an order was entered. The court ordered the father and the Division of Family Services to appear for a final hearing. The Division of Family Services was ordered to conduct a reinvestigation into the matter of custody and again to report to the court. Due to the appellant’s Virginia residency, an investigation was conducted by the Department of Public Welfare of Frederick County, Virginia.

A hearing was held-and an order was entered which provided:

* * * * * *

“1. That the Court reserves ruling upon the Motion of the Petitioner, ANN UNGER MOEHLER, for Termination of Temporary Custody and Establishment of Permanent Custody.

“2. That the Respondent, WALTER ELWOOD UNGER, is ordered to deliver the minor child of the parties, CHRISTOPHER HARRISON UN-GER, to the petitioner, ANN UNGER MOEHLER, on or before May 29, 1974. That said minor child of the parties, CHRISTOPHER HARRISON UN-GER, shall live with the Petitioner, ANN UNGER MOEHLER, for a period of three months.

“3. The Division of Family Services is hereby ordered to conduct an appropriate investigation concerning the best interests and welfare of the child, CHRISTOPHER HARRISON UN-GER, and report back to this Honorable Court on or before September 6, 1974.”

This interlocutory appeal has followed. Certainly the best interests of the child are not served by a succession of temporary custody orders. In effect such a procedure of divided custody is one that has been held to be undesirable for the child. Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749 (1946); Rudolph v. Rudolph, Fla. App.1962, 146 So. 2d 397.

We conclude from a review of the reports of the agencies involved that there is no conflict concerning the fact that the child is doing well with the father. There continues to be doubt in the trial judge’s mind and the doubt appears reasonable to us as to the future welfare of the child if he is placed in the home of his remarried mother. The order appealed is reversed and the cause remanded with directions to hold such further hearings as may be necessary to determine the issue of custody without further reports.

Reversed and remanded.

. The appellee lias not filed a brief.


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Citator

Cited By

  • Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)
    …cannot be approved. It is well-settled Florida law that split-custody provisions, such as the one entered below, are strongly disfavored and ordinarily may not be sustained. E. g., Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749 (1946); Unger v. Unger, 306 So. 2d 540 (Fla. 3d DCA 1975); Wonsetler v. Wonsetler, 240 So. 2d 870 (Fla. 2d DCA 1970). The essential reason for this rule lies in the fact that, in the usual case, such an arrangement does not promote what is the only proper concern in custody cases: the be…
  • Gerscovich v. Eugenio Alberto Gerscovich, 406 So. 2d 1150 (Fla. 5th DCA 1981)
    …d full custody to her with reasonable rights of [*1152] visitation in the father [citation omitted]. Id. at 399, 400. Rotating custody of a four year old child on the basis of agency reports made from time to time was disapproved in Unger v. Unger, 306 So. 2d 540 (Fla.3d DCA 1975). Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla.3d DCA 1980) struck down an attempt to rotate custody of children aged two and four between the mother in Florida for five and three-quarter months and the father in Louisiana for five a…
  • Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)
    …years, we have held: “Certainly the best interests of the child are not served by a succession of temporary custody orders. In effect such a procedure of divided custody is one that has been held to be undesirable for the child.” 8 Unger v. Unger, 306 So. 2d 540, 541 (Fla. 3d DCA 1975). See also Scott v. Scott, supra; Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980). A fortiori, where the unrebutted testimony (which led to placing the child in the custody of the mother in the first instance and sto…

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