CAROL B. BONE, APPELLANT,
v.
JOHN R. BONE, APPELLEE
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In a dissolution of marriage case, the trial court awarded custody of a three-year-old child to the father based partly on citing a First District case that was subsequently reversed by the Florida Supreme Court. The appellate court affirmed the custody award, holding that remand is not required when the trial court's ultimate conclusion remains consistent with the legal principles announced in the Supreme Court's reversing opinion.
Remand is not required when the trial court's conclusion in a custody award remains consistent with the principles announced by the Supreme Court in its opinion reversing the case cited by the trial court. The appellate court will not reverse a trial judge's custody determination absent a clear showing of abuse of discretion.
[1] A trial court's decision in a child custody case will not be reversed absent a clear showing of abuse of discretion.
[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 intelligence“In any child custody proceeding, the welfare of the child is the prime consideration.”
Establishes the paramount legal standard in custody cases as articulated by the Florida Supreme Court in Dinkel
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Join FLexlaw to unlock all legal intelligenceCarol B. Bone and John R. Bone were parties to a dissolution of marriage proceeding concerning custody of their three-year-old minor child. The trial …
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BOYER, Chief Judge.
This appeal emanates from a final judgment in a dissolution of marriage proceeding by which custody of the parties’ three-year-old minor child was awarded to its father, appellee here. In the final judgment, the able and experienced trial judge cited two cases from this court, Dinkel v. Dinkel, Fla.App. 1st 1974, 305 So. 2d 90 and Young v. Young, Fla.App. 1st 1974, 305 So. 2d 92, stating: “The language in Young is particularly applicable.”
Appellant first urges that quashal of our Dinkel decision by the Supreme Court of Florida (Dinkel v. Dinkel, Sup.Ct. Fla.1975, 322 So. 2d 22) necessitates a remand of this case for reconsideration by the trial judge in light of the Supreme Court’s opinion in Dinkel, citing as authority Dean v. Deas, Sup.Ct.Fla.1959, 116 So. 2d 23. Our examination of the latter case reveals that although it is authority for remand when the rule of law relied upon by the trial court is subsequently reversed, it does not necessitate such a result when the conclusion in the final judgment of the trial court being reviewed is consistent with the principles announced by the Supreme Court in its opinion by which the case cited by the trial court is reversed. The case sub judice is a perfect example:
In the final judgment here appealed the trial judge recited: “The Court finds that the respondent-wife is not a fit and proper person to have the custody of the minor child.” The subsequent provision in the final judgment awarding custody of the child to its father, appellee, necessarily implies that the trial judge not only found appellant not to be a fit and proper person to have custody of her minor child but also that it was for the best interest of the child for custody to be vested in appellee.
In the Supreme Court’s Dinkel opinion that court justified its jurisdiction upon the stated basis that this Court’s opinion conflicted “ * * * with the myriad cases setting forth the rule that in the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed.” It further said:
“In any child custody proceeding, the welfare of the child is the prime consideration. * * * ”
“ * * * Whether the adultery has a direct bearing on the welfare of the child is a question for the trier of fact. * * * ”
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“Where the trier of fact reaches the conclusion that the adulterous conduct adversely affects the child, the scales are tipped against the award of custody to the adulterous spouse. * * * ”
* * * * * *
“It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. * * * ”
No abuse of discretion has been shown. Neither we nor the Supreme Court are legally authorized to substitute our opinion for that of the trial judge.
AFFIRMED.
The appellee, husband, has timely moved for an award of attorney’s fees incident to this appeal pursuant to Rule 3.16(e), FAR. That motion is not frivolous but it is denied.
RAWLS, J., and WARREN, LAMAR, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Lelia S. Dean v. Deas, 116 So. 2d 23 (Fla. 1959)
- Dinkel v. Dinkel, 305 So. 2d 90 (Fla. 1st DCA 1974)
- Young v. Young, 305 So. 2d 92 (Fla. 1st DCA 1974)