Bienvenu v. Bienvenu, 79-1780

• Citation: 380 So.2d 1164
• Decision Date: 11 March 1980
• Docket Number: No. 79-1780,79-1780
• Parties: Denise M. BIENVENU, Appellant, v. Robert P. BIENVENU, Appellee.
• Court: Florida District Court of Appeals

Page 1164

380 So.2d 1164

Denise M. BIENVENU, Appellant, v. Robert P. BIENVENU, Appellee.

No. 79-1780.

District Court of Appeal of Florida, Third District.

March 11, 1980.

Carolina A. Lombardi and Elizabeth S. Baker, Miami, for appellant.

No appearance for appellee.

Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.

SCHWARTZ, Judge.

In a final judgment of dissolution, the trial court divided custody of the parties' two sons, aged four and two respectively, so that until the older boy reached school age when the issue was to be redetermined they would alternately spend 53/4 months with their father, who lives in New Orleans, and 53/4 months with their mother in Dade County. Each parent's right to custody was conditioned upon the posting of a $1,750 bond. Mrs. Bienvenu appeals ¹ from these determinations. We reverse.

The parties, who were married in Dade County in 1975 while the husband was in the Air Force, had been engaged in a bitter dispute over their own relationship and, more significantly, over the custody of their children. At the final hearing, each, to say the least, had uncomplimentary things to say about the other. The trial court decided that, under the circumstances, "both (parents) should have a shot of having these kids for a period of time." For that reason alone, he entered the "rotating" custody award now in question. That determination cannot be approved.

It is well-settled Florida law that split-custody provisions, such as the one entered below, are strongly disfavored and ordinarily may not be sustained. E. g., Hurst v. Hurst, 158 Fla. 43, 27 So.2d 749 (1946); Unger v. Unger, 306 So.2d 540 (Fla. 3d DCA 1975); Wonsetler v. Wonsetler, 240 So.2d 870 (Fla. 2d DCA 1970). The essential reason for this rule lies in the fact that, in the usual case, such an arrangement does not promote what is the only proper concern in custody cases: the best interests of the child. As the supreme court said in the Hurst case, supra, at 27 So.2d 750:

(T)he question may be . . . narrowed to the one whether the welfare of the child will be promoted if he is placed with first one parent and then the other, his home life interrupted every half-year. It is thoroughly established that in such circumstances the primary concern of the court is the well-being of the child, and we have grave doubt that an infant three years old can develop normally and thrive if at the end of every six months he is removed from surroundings familiar to him and forced to become accustomed to new ones. The predicament of the child would probably be further complicated by the fact that both parents have remarried.

This doctrine applies with even greater force to this case. The situation confronting the children during each successive period of custody and at and after each exchange would be rendered even more distressing by the fact that their mother and father are so mutually antagonistic. Moreover, in Rudolph v. Rudolph, 146 So.2d 397 (Fla. 3d DCA 1962), this court made it very clear that, contrary to the judgment below, these considerations may not be overridden by a concern, however well-intended, that justice be done to the parents. At 146 So.2d 399, we said:

There is no doubt but that the chancellor was attempting by this arrangement to be fair to each of the parties. In custody matters, however, it is not the rights of the parties which are of paramount importance, but the best interests of the minor. Hurst v. Hurst, 158 Fla. 43, 27 So.2d 749. Divided custody which involves periodic removal from familiar surroundings is not desirable nor conducive to a child's welfare. (citing cases)

See also, e. g., Lee v. Lee, 43 So.2d 904 (Fla.1950); Peterseil v. Peterseil, 307 So.2d 498 (Fla. 3d DCA 1975); Julian v. Julian, 188 So.2d 896 (Fla. 3d DCA 1966). This is not to say that a divided-custody arrangement may not be approved when justified by some particular circumstances which would tend to ameliorate its undesirable effects. Such factors might include, for example, older and more mature children, parents who live near each other or are willing to cooperate in lessening the impact of the changes in custody, and a division of periods of custody which is related to actual events in the children's lives, such as between school and holiday periods. ² See, e. g., Dworkis v. Dworkis, 111 So.2d 70 (Fla. 3d DCA 1959), cert. denied, 115 So.2d 6 (Fla.1959). See generally Annot., Comment Note "Split," "divided," or "alternate" custody of children, 92 A.L.R.2d 695 (1963). The case at bar, however, involves none of these circumstances, nor any similar one. To the direct contrary, it presents a classic case for the application of the general principle that children should not be divided in half, either physically, as Solomon wisely only proposed, or temporally, as unwisely actually effected in...