Anderson v. Anderson

• Decision Date: 08 January 1975
• Docket Number: No. 45217,45217
• Citation: 309 So.2d 1
• Parties: Nancy M. ANDERSON, Petitioner, v. James Robert ANDERSON, Respondent.
• Court: Florida Supreme Court

Page 1

309 So.2d 1

Nancy M. ANDERSON, Petitioner, v. James Robert ANDERSON, Respondent.

No. 45217.

Supreme Court of Florida.

Jan. 8, 1975.

Rehearing Denied March 27, 1975.

Mallory H. Horton, Horton, Perse & Ginsberg, Miami, for petitioner.

Joseph Gassen, Jepeway, Gassen & Jepeway, Miami, for respondent.

DEKLE, Justice.

The present dispute arises out of the child custody provisions 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 opined:

'The Court further finds and concludes that both the Petitioner and Respondent are in all respects fit and proper persons to have custody of the two minor children of the parties. . . . Each of the parties is an assistant national bank examiner for the United States Government at substantially equal salaries. The financial affidavits filed before the Court establish that if the Petitioner, Nancy M. Anderson, were to have custody of the minor children there would be insufficient monies to support them in the heretofore established manner, whereas, if James Robert Anderson has custody of the said minor children, the said children could be supported in the heretofore established manner through the contribution to their support hereinafter set forth and could remain in their home, where the Court finds that the Respondent, James Robert Anderson could in all respects provide for the physical and emotional needs of the said minor children.'

These are twin girls, 2 1/2 years of age at time of final hearing in 1973, born of a 1970 marriage which foundered in October, 1971. The father is 45, the mother 25; his third and her first marriage. Both the husband and the wife as bank examiners were required to be out of town intermittently in discharging their duties. The area of their duties varied from Ft. Pierce, Florida, on the north, to Key West on the south, and as far west as Naples, Florida, and occasionally out of the state. The parties were equally required by the necessities of their employment to engage babysitters from time to time to take care of the twin daughters.

The trial court awarded custody of the twin girls to respondent-father, with visitation rights to petitioner-mother, directing that the mother pay $25.00 per week child support, but during the time that the girls stay with her, that respondent-father pay $40.00 per week child support to her. She was on the home loan, but the home was awarded to the father, a basis recited by the learned chancellor for the award of the children to the father. The mother urges that custody should have been awarded to her.

In Fields it was found that both parents were fit to have custody. The chancellor had awarded custody to the father of the three children of the marriage, aged three, five and seven years. This Court reversed, giving the mother total custody of the youngest child, and giving her custody of the older children nine months of the year. In so holding, this Court relied upon language from an Alabama case which provided:

"Other things being equal, . . . the mother of infants of tender years (is) best fitted to bestow the motherly affection, care, companionship, and early training suited to their needs." (197 So. 531)

F.S.A. § 61.13(2) providing for equal consideration of the father in the award of custody is not inconsistent with this rule of law historically enunciated by the courts.

In Stewart the trial court awarded custody of a two-year-old baby girl to the parents, alternating custody two months at a time. This Court reversed, directing the trial court to make further findings, and if it found the mother not to be an unfit parent, to give custody of the child to the mother. The Fields rule was relied upon.

Teel v. Sapp, 5 So.2d 635 (Fla.1951), is pertinent here. There we observed: (p. 635)

'The little girl, now two years old, had been placed with the mother under the decree of divorce and there she should remain. We have often said that children of tender years should be put in the care of their mothers, who are by nature better equipped to rear them. Of course an exception is made in the case of a mother who is proved morally unfit . . ..'

We reversed the chancellor's award to the father.

Hurst was a reversal by our Court of an award of custody of a three-year-old child of the parties which had alternated custody between the parties on a six-month basis. Again citing the Fields rule, we held that custody should be granted to the mother with reasonable visitation rights being granted to the father where their circumstances were equal.

Brust v. Brust, 266 So.2d 400 (Fla.App.1st 1972), turned on a little different circumstance, namely, the mother's difficulty in coping with three rambunctious young boys, better controlled and disciplined by their father who was correctly given custody. Numerous other cases support a father's custody in proper cases in the best interests and welfare of the children. ¹

Respondent urges that there is no conflict with these cases because the determination of custody has now swung away from favoring the mother, he says, to a pure determination of what is best for the child. Moreover, respondent urges, the chancellor in this case found that things were not actually equal between the parties, that although each parent was fit, the children would be in a better position living with their father because such an arrangement would be less disruptive to the children and would better support their existing lifestyle in the home to which they had been accustomed which was awarded to the father.

The 3rd District affirmed, finding sufficient evidence in the record to support the trial court's decision. The district court apparently considered the general rule, still viable despite the 'equal consideration' set forth in F.S.A. § 61.13(2), that, other essential factors being equal, the mother of infants of tender years should receive prime consideration for custody. 'Equal consideration' to a father resulting in a finding of 'other factors being equal' still invokes the traditional rule for prime consideration being given the mother for custody of infants of tender years. Of course this is not a 'conclusive presumption,' as observed in subsequent Goodman v. Goodman, 291 So.2d 106 (Fla.App.3d 1974), by the sage and sagacious Judge Norman Hendry, able jurist...