MILDRED STEWART,
v.
SAM STEWART

Fla. | 1946-01-22
CHAPMAN, C. J„ TERRELL and BUFORD, JJ., concur.
156 Fla. 815 Florida Supreme Court (1946) Positive Treatment
Also reported at: 24 So. 2d 529
Cited by 28 cases

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Synopsis

Mildred Stewart appealed a trial court's dismissal of her divorce petition and its award of divided alternating custody of the couple's two-year-old daughter. The Florida Supreme Court affirmed the dismissal for insufficient proof of divorce grounds but reversed the split custody arrangement, holding that the welfare of a young child is best served by undivided custody with the mother unless she is shown to be unfit.


Holding

The dismissal of the divorce complaint was affirmed as supported by conflicting testimony and sufficient evidence. The split custody arrangement was reversed; the court must award sole custody to the mother unless she is proven unfit, allowing the child to pursue a normal life without alternating between parental control.


Key Quotes

“in a proceeding involving the custody of a minor child, the welfare of the child is the controlling consideration”

Establishes the paramount standard for custody determinations

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Facts & Procedural History

Mildred Stewart filed for divorce against Sam Stewart on grounds of habitual intemperance, extreme cruelty, violent temper, and desertion. The couple …

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Opinion of the Court
SEBRING, J.:

SEBRING, J.:

Mildred Stewart instituted a suit for divorce against her husband, Sam Stewart, on the grounds of habitual intemperance, extreme cruelty by defendant to plaintiff, habitual indulgence by defendant in violent and ungovernable temper, and desertion. In the bill of complaint she prayed that a *816decree be entered granting her the custody and control of the two year old girl child of the parties. The defendant answered, putting the plaintiff to proof of the allegations of her bill and denying her fitness to have the child, and testimony was taken before the court on the issues. At final hearing the court entered its decree dismissing the bill of complaint for failure of the plaintiff to prove grounds for divorce. With respect to the minor child of the parties the court decreed that the child be awarded to the father for the months of January, February, May, June, September and October of each year, and to the mother for the remaining months of the year, with the right of visitation to the parent out of custody of the child at reasonable places and times. The plaintiff has appealed from the decree of the court and has assigned as error the refusal of the court to grant the decree of divorce, and the refusal tof the court to give the plaintiff exclusive care, custody, and control of the child.

The testimony offered on the issue of divorce is in sharp conflict. There is ample evidence to sustain the court’s finding that the bill of complaint should be dismissed for want of proof. The court’s decree on the issue of divorce, therefore, will not be disturbed but will be affirmed.

The question of the custody of the girl baby presents another matter. It is the law that in a proceeding involving the custody of a minor child, the welfare of the child is the controlling consideration. Ordinarily, in the case of a child of young and tender years its welfare is not best promoted by ordering a divided custody of such child between the parents, or by taking the child from the mother unless it be shown that she is not a fit and proper person to rear it during its tender years. See Phillips v. Phillips, 153 Fla. 133, 13 So. (2nd) 922; Fields v. Fields, 143 Fla. 886, 197 So. 530; Jones v. Jones (Fla.) 23 So. (2nd) 623. The decree of the court awards the custody of the girl baby alternately to the father and mother for two-month periods. Doubtless the able chancellor felt that some good reason existed for awarding custody in such fashion; but unfortunately if such reason existed it is not reflected in the record. Neither party is found by the court to be an unfit person to have custody and control *817of the child, but we cannot escape the conclusion that “no child can pursue a normal life when subjected to the precepts, example or control of first one person and then another, regardless of how well intentioned those persons may be.” See Phillips v. Phillips, supra. It is our view, therefore, that this provision of the decree must be reversed with leave to the court to make a further order of award relative to the custody of the child; and that if the mother be not an unfit person to have its custody and control under all the circumstances that the award be made to her until change of circumstances make it meet and proper that some other or different order be made. The right of the court to make an order awarding custody even though the bill for divorce has been denied for want of proof is sustained, we think, by Duke v. Duke, 109 Fla. 325, 147 So. 588; the question of what action the court should take regarding the custody of the child having been squarely presented by the pleadings in the cause. Such award as is made in accordance with the conclusions herein reached should afford to the parent out of custody and control the privilege of reasonable visitation.

The decree appealed from is affirmed in part and reversed in part.

It is so ordered.

CHAPMAN, C. J„ TERRELL and BUFORD, JJ., concur.


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Citator

Cited By

  • Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
    …ourt to take jurisdiction of two separate matters. Cone v. Cone, Fla.1953, 62 So. 2d 907. The jurisdiction of the court regarding custody, once acquired, continues regardless of the outcome of the actual divorce litigation. Stewart v. Stewart, 1946, 156 Fla. 815, 24 So. 2d 529; Duke v. Duke, 1933, 109 Fla. 325, 147 So. 588. Thus in normal circumstances if a worn an files for divorce and seeks custody of her children and it is determined that the woman was never validly married, the court could nevertheless…
  • Anderson v. Anderson, 309 So. 2d 1 (Fla. 1975)
    …ns of a dissolution of the marriage of the parties. Petitioner cites three decisions of this Court from the 1940s for conflict with the 3rd District’s opinion at 289 So. 2d 463. Fields v. Fields, 143 Fla. 886, 197 So. 530 (1940); Stewart v. Stewart, 156 Fla. 815, 24 So. 2d 529 (1946); and Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749 (1946). The trial court found that respondent-husband was entitled to the marital home, and this finding is not challenged here. As to the issue of custody, the trial court opine…
  • Bell v. Bell, 112 So. 2d 63 (Fla. 3d DCA 1959)
    …Fla. 732, 1 So. 2d 734; 10 Fla.Jur., Divorce, § 251. We do not imply that the father does not have a right of reasonable visitation with his children. This right is recognized ancf may properly be protected by order of the court. Stewart v. Stewart, 156 Fla. 815, 24 So. 2d 529; Yandell v. Yandell, Fla.1949, 39 So. 2d 554. We hold that the chancellor properly changed the provision of his amended final decree relating to the property in this state which the decree had set aside as a home for the mother and c…

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