WILLIAM E. CHILDRESS, APPELLANT,
v.
SHIRLEY R. CHILDRESS, APPELLEE
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In this family law appeal, the Florida District Court of Appeal reversed a trial court's modification of a father's visitation rights because the mother failed to file a pleading seeking such modification. The court held that absent an emergency, courts cannot alter final judgments regarding visitation without proper procedural compliance.
The trial court lacked authority to modify the visitation provisions of the final judgment in the absence of a pleading filed by the wife seeking such modification and absent an emergency affecting the children's welfare. The original visitation terms must be reinstated.
[1] A trial court cannot modify a final judgment regarding visitation rights without a properly filed pleading seeking such modification, absent an emergency affecting the ch…
[2] A trial court lacks the power to alter visitation provisions in a final judgment of dissolution of marriage when no pleading has been filed in accordance with the rules o…
Previewing 2 of 4 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“the trial court was without power, in the absence of an emergency affecting the welfare of the children, to alter the final judgment where no pleading was filed in conformance with the rules of civil procedure”
Establishes the core holding that procedural compliance (filing a pleading) is required to modify final judgments absent emergency
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were divorced by final judgment on July 20, 1972, which granted the husband reasonable visitation privileges with the couple's minor sons.…
The full statement of facts, procedural history, and disposition for this case are member content.
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HENDRY, Judge.
The pleadings contained in the record on appeal in this case include the following: the wife’s petition for modification of support and alimony payments; the huband’s petition for a change of custody of the couple’s minor sons, Bill and Steve Chil-dress; and the husband’s motion for contempt due to the wife’s failure to grant him reasonable visitation privileges.
Following a hearing, the trial court entered an order which in paragraph two provided that the husband shall have only such right of visitation as the wife “in her sole discretion and convenience, shall feel is in the best interest of said children.”
This provision modified the terms of the final judgment of dissolution of marriage between the parties entered on July 20, 1972, granting reasonable visitation privileges to the husband.
However, the wife never filed a pleading in this cause seeking a modification of the husband’s visitation privileges, and we hold that the trial court was without power, in the absence of an emergency affecting the welfare of the children, to alter the final judgment where no pleading was filed in conformance with the rules of civil procedure. See, Purvis v. Carter, Fla.App. 1974, 303 So. 2d 681; Scheer v. Scheer, Fla.App. 1961, 132 So. 2d 456.
Accordingly, we reinstate the original provisions of the final judgment concerning visitation rights of the husband and set aside paragraph two of the order appealed. We do so, of course, without prejudice to the wife’s right to file an appropriate pleading directed to the issue of visitation and to the trial court’s reconsideration of the matter. The order appealed is affirmed in all other respects.
Affirmed as modified.
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Citator
Cited By
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Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)…. 4th DCA 1974). The husband argues that where an emergency affecting the best interests of the child exists, the trial court has the authority to change or modify custody even where the proper pleadings have not been filed. Childress v. Childress, 309 So. 2d 581 (Fla. 3d DCA 1975). The trial court did not find that any emergency existed. We, accordingly, reverse without prejudice to the husband’s right to file an appropriate pleading directed to the issues of visitation and telephone contact and to the tri…
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Matthews v. Matthews, 376 So. 2d 484 (Fla. 3d DCA 1979)…ort payments without prior pleadings or notice. This is error. See: Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Scheer v. Scheer, 132 So. 2d 456 (Fla.3d DCA 1961); Purvis v. Carter, 303 So. 2d 681 (Fla.4th DCA 1974); [*485] Childress v. Childress, 309 So. 2d 581 (Fla.3d DCA 1975); Kranis v. Kranis, 313 So. 2d 135 (Fla.3d DCA 1975); Smithwick v. Smithwick, 343 So. 2d 945 (Fla.3d DCA 1977); Kaken v. Neubauer, 374 So. 2d 49 (Fla.3d DCA 1979). The order dated July 17, 1979, so far as it purported to change cus…
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Hanna v. Schmidt, 707 So. 2d 966 (Fla. 4th DCA 1998)…not abuse its discretion. See Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975); § 61.30(b), Fla. Stat. (1996). However, we reverse reduction of the appellant’s visitation rights as appellee did not seek same in her pleadings. See Childress v. Childress, 309 So. 2d 581 (Fla. 3d DCA 1975). Although the trial court was not bound by any stipulation or agreement between the parents, the trial court erred in modifying its earlier order of visitation. See Lewis v. Lewis, 665 So. 2d 322 (Fla. 4th DCA 1995). Moreover, o…
Authorities Cited
- Scheer v. Scheer, 132 So. 2d 456 (Fla. 3d DCA 1961)
- Purvis v. Carver, 303 So. 2d 681 (Fla. 4th DCA 1974)