JANE C. NICHOLSON, APPELLANT,
v.
ANTHONY J. NICHOLSON, APPELLEE
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.
A Florida appellate court reversed a trial court's modification of a divorce decree that transferred custody of a minor child from the mother to the father, finding no substantial change in circumstances warranted the custody modification. The court also vacated a contempt finding against the mother due to inadequate notice and lack of express finding regarding her ability to comply.
The court reversed the custody modification because the record did not reflect a substantial change in circumstances or conditions since entry of the original decree, which is a required prerequisite to modifying custody. The court also reversed the contempt finding because the record failed to show adequate notice of the contempt hearing and the order lacked an express finding that the appellant had the ability to perform the required act.
[1] Modification of child custody requires a substantial change in circumstances since the entry of the original decree.
[2] A trial court lacks the same degree of discretion to modify a divorce decree's custody provision as it has to enter the original decree.
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“A trial court does not have the same degree of discretion to modify the custody provision of a divorce decree as it does to enter the original decree.”
Establishes the heightened standard required for custody modifications compared to initial custody determinations.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage case, the trial court initially awarded custody of the minor child to the mother (appellant) after finding both parents e…
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.
Explore caselaw by topic → Browse Modification Of Custody cases and more on FLexlaw
PER CURIAM.
Upon consideration of the consolidated interlocutory appeals of Jane C. Nicholson, appellant, from orders modifying custody and holding appellant in contempt we are of the opinion that the orders should be reversed to the extent as hereinafter set forth.
The final judgment of dissolution based upon the petition filed by Anthony J. Nicholson, appellee, found both parties to be equally fit to have custody of the minor child and thereafter awarded custody of the child to the appellant. Subsequently, both parties filed petitions to modify the final judgment and motions for order of contempt predicated in part upon the wife’s removal of the child to another state and the husband’s failure to comply with certain payment provisions of the addendum to the final judgment of dissolution. The court ultimately adjudged both parties to be in contempt giving each party an opportunity to purge themselves; the court denied the wife’s petition to modify judgment which sought permission to remove the child from the state and granted the husband’s petition for modification to the extent of changing the custody of the minor child from appellant to the appellee.
In regard to the order modifying the final judgment of dissolution and transferring custody of the child from the appellant to the appellee the record does not reflect nor does the modification order suggest a substantial change in circumstances or conditions since the time the decree was entered, which requirement must be satisfied before custody can be altered. Frye v. Frye, Fla.App.1967, 205 So. 2d 310. A trial court does not have the same degree of discretion to modify the custody provision of a divorce decree as it does to enter the original decree. Frye v. Frye, supra. Absent the existence of a substantial change in conditions (and even where such substantial change exists absent a determination that the welfare of the child would be promoted by such change in custody), an order altering custody is erroneous.
In regard to the order holding appellant in contempt the record fails to reflect that appellant had adequate notice of the hearing at which she was adjudged in contempt.1 Moreover, the order of contempt is deficient in that there is no express finding therein that the appellant had the ability to perform the act required of her. Ratner v. Ratner, Fla.App. 1974, 297 So. 2d 344.
Accordingly, that portion of the order changing the custody of the minor child from the appellant to the appellee is vacated and set aside and the original custody order reinstated;2 the order of contempt is vacated and set aside and the cause remanded to the trial court for further proceedings on appellee’s motion for contempt after reasonable notice and hearing thereon.
CROSS, MAGER, and DOWNEY, JJ., concur. . On August 14, 1974, the court entered an order denying appellant’s motion for order of contempt. On August 15, the appellee renewed his motion and the court thereafter proceeded to hold a hearing on that date adjudging the appellant in contempt.
It is not necessary to issue a “rule to show cause” as a means of providing notice to the alleged contemnor. As a matter of practice the “rule” is technically no longer available and instead has been supplanted by a “motion for contempt order”. See Florida Family Law, O.L.E., 2d ed., sections 33.8-33.11. See also Committee Note to Rule 1.100(b), F.R.C.P. Whichever procedure is utilized (the “rule” or the “motion”), service on the party is effectuated where service is made upon the party’s attorney where it is clear that there is a pending cause in which such attorney is actively engaged on behalf of the party. Reizen v. Florida National Bank at Gainesville, Fla.App.1970, 237 So. 2d 30.
. We find no error in the trial court’s refusal to deny the wife’s petition for permission to remove the minor child from the state. The wife’s desire to become self-sufficient is commendable ; however, the present state of the record does not clearly demonstrate her inability to further her education in this state and the necessity for permitting the appellant to remove the child from the state for such purpose.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…2d at 1184; Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975). Our position is additionally supported by the following rule, also unaltered [*1038] by Canakaris, requiring the non-custodial parent, who seeks modification of the earlier custody award, to satisfy a two-part evidentiary test n…
-
Sanders v. Peggy J. Sanders (Kirkland), 376 So. 2d 880 (Fla. 1st DCA 1979)…at the best welfare of the child will be promoted by a change of custody. Belford v. Belford, 159 Fla. 547, 32 So. 2d 312 (1947); Bennett v. Bennett, 73 So. 2d 274 (Fla.1954); Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975); Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975), modified 327 So. 2d 55 (Fla. 1st DCA 1976); In Interest of W. H., 356 So. 2d 34 (Fla. 1st DCA 1978), cert. den. sub nom. Albritton v. Hedspeth, 360 So. 2d 1247 (Fla.1978). Ther…
-
Elkins v. Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983)…fish v. Walfish, 383 So. 2d 274 (Fla. 3d DCA 1980); Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980); Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975); Wilson v. Condra, 255 So. 2d 702 (Fla. 1st DCA 1971). Additionally, a party must show that the welfare of the child will be promoted by the change. Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Haines v. Haines, 417 So. 2d 8…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Alston v. State, 297 So. 2d 344 (Fla. 3d DCA 1974)
- Reizen v. Fla. Nat'l Bank AT Gainesville, 237 So. 2d 30 (Fla. 1st DCA 1970)