JAMES M. AVERY, APPELLANT,
v.
FRANCES M. AVERY, APPELLEE
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In this family law appeal, James Avery sought reversal of a trial court decision denying his request to modify a custody order in his favor. The appellate court, upon reconsideration following a rehearing petition, reversed its prior decision and affirmed the trial judge's modification granting custody of the minor children to the father, finding that material and substantial changes in circumstances had justified the modification.
The court determined that the facts demonstrated a material and substantial change in conditions and circumstances justifying the trial judge's modification order awarding custody of the two minor children to the appellant-father. The court affirmed that portion of the order granting custody to the father and reversed that portion awarding the mobile home to the mother.
[1] A material and substantial change in conditions and circumstances may justify modification of a child custody order.
[2] The welfare of the child is the prime consideration in any child custody proceeding.
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Join FLexlaw to unlock all legal intelligenceThis case involved a dispute over custody of two minor children in a family law proceeding. The trial court modified an existing custody provision, or…
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PER CURIAM.
Oral argument in this case was initially heard by a panel of this Court consisting of Judges Rawls, Johnson and Mills. An opinion authored by Judge Johnson was filed on June 16, 1975. In that opinion Judge Mills concurred and Judge Rawls concurred in part and dissented in part. Appellant thereafter filed a petition for rehearing. Effective July 1, 1975 Judge Johnson retired as a Judge of this Court.
Judge Johnson having retired, as aforesaid, Judge Boyer was substituted in his place and stead as a member of the three-judge panel (see Sec. 4(a), Art. V, Constitution of the State of Florida) for consideration of the petition for rehearing. Upon consideration of that petition Judges Rawls and Boyer determined that it was well founded, Judge Mills being of the view that the petition should be denied. Rehearing was granted and this case was orally argued for a second time before Judges Rawls, Boyer and Mills on October 1, 1975.
The facts and issues of this case have been sufficiently recited in our opinion which, because of our improvidently issued mandate, has already been published and reported. (Avery v. Avery, Fla.App. 1st 1975, 314 So. 2d 198) No useful purpose will be served by repetition here. Upon reconsideration we recede from that portion of the opinion wherein we stated:
“We do not deem these circumstances sufficient to justify a modification of the custody provisions of the final judgment.” (314 So. 2d 200)
and determine instead that the facts recited demonstrate a material and substantial change in conditions and circumstances such as to have justified the modification order of the trial judge awarding custody of the two minor children to the appellant-father. In any child custody proceeding, the welfare of the child is the prime consideration. (Dinkel v. Dinkel, Sup.Ct. Fla.1975, 322 So. 2d 22) It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child and an appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. (Dinkel v. Dinkel, supra)
As to the issue regarding the award of the mobile home to the appellee-mother, we adhere to our prior opinion.
That portion of the order here appealed awarding the custody of the two minor children to the appellant-father is affirmed. That portion of said order awarding the mobile home to the appellee-mother is reversed. Our prior opinion reported at 314 So. 2d 198 and our mandate dated July 2, 1975 are modified and amended in accordance herewith.
It is so ordered.
BOYER, C. J., and RAWLS, J., concur. MILLS, J., dissents.
MILLS, Judge
(dissenting) :
I dissent. I adhere to the majority opinion reported in Avery v. Avery, 314 So. 2d 198 (Fla.App. 1st, 1975).
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Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)…subject to future modification in accordance with the general law of modification upon a showing of substantial change in circumstances. See § 61.1326, Fla.Stat. (1989). See also Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975), opinion modified, 327 So. 2d 55 (Fla. 1st DCA 1976); Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980). II. Specification of a Particular School The final judgment ordered that both children remain at the Creative Learning Center…
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Sanders v. Peggy J. Sanders (Kirkland), 376 So. 2d 880 (Fla. 1st DCA 1979)…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). There was a failure in the mother’s case in chief that the best interests of the minor child would b…
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Theisen v. Theisen, 463 So. 2d 427 (Fla. 3d DCA 1985)…final judgment and amounts to modification of a provision of the final judgment which was neither requested by nor the subject of any pleadings of either party. See Avery v. Avery, 314 So. 2d 198, 201 (Fla. 1st DCA 1975), modified on other grounds, 327 So. 2d 55 (Fla. 1st DCA 1976), and authorities collected. We agree with the wife, however, that this $1,100 payment in no way satisfies, in whole or in part, the husband’s obligation to set up a $2,500 trust account for the benefit of the children at age ei…
Authorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975)