LOIS W. BAKER, APPELLANT,
v.
WILLIAM H. BAKER, APPELLEE
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The appellate court affirmed the trial court's modification of a child custody judgment, finding no clear error or abuse of discretion.
[1] A trial court's decision regarding child custody is presumed correct and the appellant bears the burden of demonstrating that the order appealed was clearly erroneous.
[2] Modification of child custody provisions requires a substantial change in circumstances since the entry of the original final judgment.
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Join FLexlaw to unlock all legal intelligenceThe appeal concerned an order modifying a final judgment by transferring custody of a minor child from the mother to the father. The facts were detail…
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RIVKIND, LEONARD, Associate Judge.
This is an appeal from an order modifying a final judgment by transferring custody of a minor child of the parties from the appellant-mother to the appellee-father. The facts are fully set forth in the trial judge’s order of modification. No useful purpose would be served by repeating them here.
The decision of the trial judge carries with it the presumption of correctness and it is incumbent upon appellant to demonstrate that the order appealed was clearly erroneous. Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975); Cowen v. Cowen, 95 So. 2d 584 (Fla.1957); Bennett v. Bennett, 146 So. 2d 588 (Fla. 2nd DCA 1962).
In order to modify custody there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same degree of discretion to modify the custody provisions of a final judgment of dissolution as it does at the time of the original judgment. Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967); Tash v. Oesterle, 356 So. 2d 61 (Fla. 3d DCA 1978).
We have carefully considered the entire record in this case in the light of the foregoing legal principles. We cannot say the trial court’s decision was clearly erroneous or that he abused his discretion. Ergo, we must uphold it even though we might have decided differently had we been the trier of fact. Bennett v. Bennett, supra.
As the Supreme Court stated in Grant v. Corbitt, 95 So. 2d 25, 28 (Fla.1957):
[T]his court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of a child custody.
AFFIRMED.
DOWNEY, C. J., and MOORE, J., concur.
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Citator
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…mphasis supplied). Accord Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So. 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 th…
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Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)…azier, 109 Fla. 164, 147 So. 464 (1933); Meadows v. Meadows, 78 Fla. 576, 83 So. 392 (1919). While the principle of res adjudicata has been held to apply to the issue of custody, Walfish v. Walfish, 383 So. 2d 274 (Fla. 3d DCA 1980); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975); Spradley v. Spradley, 312 So. 2d 215 (Fla. 1st DCA 1975); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975); Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974), the prin…
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Koken v. Neubauer, 374 So. 2d 49 (Fla. 3d DCA 1979)…ised its discretion by ordering these custody provisions, and we cannot on appeal substitute our judgment for that of the trial court. See, e. g., Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975); Grant v. Corbitt, 95 So. 2d 25 (Fla.1957); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); and Scheiner v. Scheiner, 336 So. 2d 406 (Fla. 3d DCA 1976). However, in regard to the change in the child support provisions, the record reflects that the trial court acted without the benefit of a proper motion, etc., before i…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Beulah Grant v. Corbitt, 95 So. 2d 25 (Fla. 1957)
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Isabel M. Cowen (Papert) v. Cowen, 95 So. 2d 584 (Fla. 1957)
- Bennett v. Lysle A. Bennett, 146 So. 2d 588 (Fla. 2d DCA 1962)
- Henry v. State, 356 So. 2d 61 (Fla. 4th DCA 1978)