Barnhill v. Barnhill, 77-321
| Decision Date | 04 January 1978 |
| Docket Number | No. 77-321,77-321 |
| Parties | Bruce Arthur BARNHILL, Appellant, v. Rosemary Cooper BARNHILL, Appellee. |
| Court | Florida District Court of Appeals |
Robert G. Petree of Bornstein, Petree & Shader, P. A., Orlando, for appellant.
Charles R. Colbrunn, Orange County Legal Aid Society, Orlando, for appellee.
The appellant, Bruce Arthur Barnhill, seeks reversal of the trial judge's order denying his petition for modification by which he sought to obtain custody of the parties' two children. The trial court left the children in the custody of their mother, Rosemary Cooper Barnhill. We affirm.
The parties were divorced on December 15, 1975. At that time, by agreement, custody of the children, Kevin, age 16, and Laura, age 11, was granted to the mother. In August of 1976, during the children's two week vacation visit with him, the father filed his petition for modification seeking a change of custody and refused to return the children to their mother until ordered to do so by the trial court. After a final hearing, which resulted in several hundred pages of testimony, the trial judge denied the father's petition for modification.
The father, in addition to his own testimony, presented an impressive array of witnesses which included medical experts, counselors and the children. The mother's case consisted largely of her own testimony and that of family friends. No doubt, if these matters were to be decided like a football or baseball game, the father would have prevailed simply because of the list of witnesses presented. But the trial judge is more than a scorekeeper in child custody cases. As the trier of fact, he must resolve any issues of fact. Using the basic guideline of the welfare and best interests of the children, the trial judge is charged with the heavy responsibility of deciding which parent shall have custody. His conclusions come to us with a presumption of correctness. Because the custody issue primarily involves the evaluation of human relationships, the judgment of the trial court, in resolving that issue, must be afforded even greater respect than a judgment involving issues which are capable of resolution based on purely objective considerations.
Although the lineup of witnesses for the father was impressive, the gist of their testimony was not decidedly favorable or unfavorable toward either party. The circumstances revealed to the trial court were not unlike those found in the aftermath of most divorces when the emotions of the parties control their actions. There were two children involved, and all of the evidence indicated that the children should be kept together. Originally the mother had been granted custody by agreement of the parties. The emotional reaction of the mother to the divorce was apparently stronger than that of the father, and the children had suffered some of the consequences of this reaction. However, the evidence showed that the mother's conduct had improved and that neither parent was in any way unfit to have custody. In brief, the father's case for custody was not one in which he sought, or did, show that the mother was unfit for custody. Rather, he sought to show that he was better qualified to...
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