Bennett v. Bennett

• Decision Date: 15 June 1954
• Citation: 73 So.2d 274
• Parties: BENNETT v. BENNETT.
• Court: Florida Supreme Court

Page 274

73 So.2d 274

BENNETT v.BENNETT.

Supreme Court of Florida, Special Division B.

June 15, 1954.

Rehearing Denied July 7, 1954.

Ward & Ward and Robert C. Ward, Miami, for petitioner.

J. Lewis Hall, Tallahassee, for respondent.

DREW, Justice.

We here review, under Rule 34 of this Court, 30 F.S.A., an order of the Circuit Court of Dade County relating to the custody of the two minor children of the parties involved in this case.Hereafter in this opinion, we shall refer to the petitioner, R. C. Bennett, as the husband, and the respondent, D. B. Bennett, as the wife.

The order here reviewed, omitting the formal parts, is as follows:

'This cause having come on to be heard upon the petition of Daga B. Ramsey, formerly Daga B. Bennett for modification of final decree of divorce and modification of that certain order of modification of the final decree dated June 12, 1952, and the answer of the plaintiffR. C. Bennett to said petition for modification; and said cause having been heard before the Court, upon testimony, and the Court being of the opinion that conditions have changed with respect to the custody of the two minor children, James Bennett and Gunnar Bennett since the order of Court dated June 12, 1952; and the Court having heard the testimony of said minor children of the parties, the interrogation of said minor children being by the Court; the Court finds as follows:

'(1) That conditions have changed since the Order of Modification heretofore entered June 12, 1952.

'(2) That it would be to the best interest and welfare of the two minor children that the said custody provisions heretofore entered by changed.

'It is therefore upon consideration, ordered and decreed that the order of this Court dated June 12, 1952, be modified or changed as follows:

'(A) That the custody of said two minor children, James Bennett and Gunnar Bennett, be and the same is hereby awarded to the father, R. C. Bennett, and the mother, Daga B. Ramsey, equally and with equal responsibility, free from interference from the other.

'(B) That the said two minor children shall be placed in a boarding school; either the same school or different schools, of the type, kind and character heretofore attended by said children; and both of the parents shall agree upon which school and where located that said children shall attend; and, in the event said parents cannot agree upon a school or schools said minor children should attend, then each of said parties is to submit to this Court the name of a school and where located and the Court shall decide the school or schools which said children shall attend.

'(C) The cost of schooling, clothing, education, medical bills, travelling expenses of said two minor children shall be borne and paid for by the father, R. C. Bennett, and this shall include reasonable telephone charges incurred by said children in telephoning their mother, who at the present time lives in the City of New York, State of New York; and that each of said parties shall have the right of visitation to said minor children during the school term, but said right of visitation shall be exercised within reason and so as not to interfere with the schooling or health of said children.

'(D) Each of the parents shall have custody of said children for one-half of the summer vacation, the mother, Daga B. Ramsey, having the first half of the summer vacation, and the father, R. C. Bennett, having the latter half of the summer vacation.During the vacation period the said custody of the parents shall not be interfered with, restricted or limited in any way by the other parent; in other words, the parent not having the children at said time shall not visit the said children.The two weeks Christmas vacation shall be equally divided between the parents, the mother having the first week and the father having the second week.

'(E) It has been made to appear to the Court that R. C. Bennett is now paying to his former wife, Daga B. Ramsey, the sum of $2500.00 for costs, expenses and upkeep of the two minor children for the six weeks period of the summer months, and also for necessary travelling expenses of the mother in visiting said children, and the Court being of the opinion that said sum should be increased to $3500.

'It is therefore ordered and decreed that R. C. Bennett pay to his former wife, Daga B. Ramsey, the sum of $3500. on June first of each year, and said Daga B. Ramsey shall not be required to give any accounting for the expenditure of said sum.That the mother, Daga B. Ramsey, is allowed the sum of $250.00 for her necessary expenses in attending the hearing of this cause in the month of November, 1953, which sum the plaintiff, R. C. Bennett, shall forthwith pay or cause to be paid to his former wife, Daga B. Ramsey.'

In the summer and early fall of 1951, the husband concluded that the wife was having an affair with one Jack Ramsey, a young man some fifteen years her junior.The wife admitted the affair and professed her love for this person; and she evidence her intention of marrying him in the event she could procure a divorce.In the event she were unable to do so, she said it was her intention to continue her relationships with him even though married.

On the following October 3, 1951, the husband instituted suit for divorce in the Circuit Court of Dade County.The bill alleged, with reference to the two children and financial arrangements:

'Plaintiff would further show to the Court that the defendant * * * has admitted that the plaintiff would be the proper one to have the care and custody of the children and has conceded that point.'

The complaint contains the further allegation:

'All financial arrangements and settlements have been made between the parties * * * and that there is now no question of alimony or property interest involved between these parties.'

The answer filed by the wife the following day:

'admits that she and the plaintiff have agreed that the plaintiff shall have custody of said children and further admits that financial arrangements and settlements have been agreed upon by the parties hereto whereby there is now no questions of alimony or property interest involved between them.'

On October 17, 1951, after testimony had been taken (none was offered by the wife), the lower Court entered a final decree granting a divorce to plaintiff.This decree contained the following provisions with reference to the two children:

'It appears that there were two minor children born of said wedlock, to wit, James Bennett, now age Twelve, and Gunnar Bennett, now age Ten, and the custody and control of said children is hereby awarded to the plaintiff.'

'The defendant is hereby restrained * * * from interfering with the plaintiff in his care and control of said children unless by consent of the plaintiff or by special order of this court, but defendant shall have the right to visit the children at their place of residence at reasonable times.'

The decree retained jurisdiction for the purpose of the enforcement thereof and for making further orders with reference to the care and custody of the children.

One week after this final decree was signed, the wife married the object of her affections, Jack Ramsey.

On January 10, 1952, a little less than three months after the entry of the final decree, the wife filed a petition for modification of the decree with reference...