DUNLAP
v.
DUNLAP
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In this divorce modification case, the Florida Supreme Court affirmed the trial court's decision to modify a final divorce decree regarding custody and maintenance of minor children, finding that the mother's significant health improvements and rehabilitation since the original decree constituted material changes in circumstances justifying modification.
The court affirmed the modification, finding that the mother's substantial rehabilitation and restoration to health, combined with her ability to become gainfully employed and properly care for the children, constituted material changes in circumstances sufficient to warrant modification of the custody provisions.
“It is contended by the appellant that the Chancellor erred in finding that material changes in circumstances had occurred to-the extent that it was to the best interest of the children that the final decree be modified.”
Establishes the primary legal issue on appeal regarding whether material changes justified custody modification.
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Join FLexlaw to unlock all legal intelligenceThe original divorce decree awarded custody of the minor children to the father (appellant) but granted the mother (appellee) the right to have the ch…
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DAYTON, Associate Justice.
This is an' appeal from an order entered' by the Circuit Court of Leon County modifying, as to custody and maintenance of the minor children of the parties, a final decree of divorce previously entered by said court.
The testimony of witnesses at the hearing on the petition for modification of the final decree of divorce was not reported. Counsel for the respective parties have stipulated as to the material facts testified to by the witnesses at such hearing, except that the testimony of Claire Love Dunlap, minor child of the parties, was heard in private by the Chancellor and is not available for the record here.
It is contended by the appellant that the Chancellor erred in finding that material changes in circumstances had occurred to-the extent that it was to the best interest of the children that the final decree be modified.
The original final decree granted custody of the children to the appellant with the provision, however, that the appellee should have the right to have the children live with her for six months of each year. The parties agreed that in order to avoid a change of custody during a school year the children would live with appellee during the last six months of one calendar year and the first six months of the next calendar year. The testimony of appellee in the original divorce proceeding, which is not contradicted, was that at the time of the-final decree she was not well “Physically and,mentally”, and that as a result of her condition she agreed to the award of custody of the children to appellant “For the time being” in order that she might receive medical treatment.
The record of the testimony taken before the Court below at the hearing on the petition for modification of the final decree shows that appellee had received psychiatric treatment since the final decree. She responded to such treatment in such a way that her health was restored and she made a full recovery. She was able to become gainfully employed and to care for the children properly.
It appears to us that the degree of rehabilitation achieved by the appellee since the rendition of the final decree amply supports the finding of the Chancellor that altered conditions had arisen since the decree sufficient to warrant its modification.
The judgment of the lower court is, therefore, affirmed.
ROBERTS, €. J., and TERRELL and SEBRING, TJ., concur.
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Smith v. Carroll Smith, 212 So. 2d 117 (Fla. 2d DCA 1968)…e appellee leaves the minor child with a middle-aged babysitter; the appellee has not provided a home for himself and the child but instead stays at the home of the babysitter when he returns on weekends. The mother, in Dunlap v. Dunlap, Fla. 1953, 66 So. 2d 221, had at the time of the divorce proceedings been in poor health, both physically and mentally. Following the divorce she received treatment and made a full recovery. Furthermore, she was able to obtain a job. The Florida Supreme Court upheld the cha…