Brannan v. Brannan, R--488

• Decision Date: 08 November 1973
• Docket Number: No. R--488,R--488
• Citation: Brannan v. Brannan, 284 So.2d 701 (Fla. App. 1973)
• Parties: Ola Mae BRANNAN, Appellant, v. Thomas Lee BRANNAN, Appellant, and Merle Brannan, Intervenor-Appellee.
• Court: Florida District Court of Appeals

Page 701

284 So.2d 701

Ola Mae BRANNAN, Appellant, v.Thomas Lee BRANNAN, Appellant andMerle Brannan, Intervenor-Appellee.

No. R--488.

District Court of Appeal of Florida, First District.

Nov. 8, 1973.

Robert B. Kane, Tallahassee, for appellants.

William C. Owen, of Carswell, McKenzie, Dean & Owen, Tallahassee, for appellee.

PER CURIAM.

Appellant, who was petitioner in the trial court, seeks review of a post-judgment order modifying the custody provisions of a final decree of divorce which withdrew from appellant the right of continued custody of her minor son and granting custody of the child to appellee-intervenor, Merle Brannan, the child's paternal grandmother.

Appellant-mother and appellee-father were the parents of three minor children at the time a final judgment of divorce was rendered on November 13, 1964, dissolving the bonds of matrimoney existing between them.Custody of the youngest son, Thomas Lawrence, then four months of age, was awarded to appellant-mother, and custody of the two older children was awarded to appellee-father.Within four months after the date of the divorce appellant-mother requested appellee-father to accept physical possession of her youngest child, Thomas, as she was unable under then existing circumstances to continue in her employment and at the same time maintain a home for the child.At that time appellee-father, together with the two older children, was living with his mother, appellee-intervenor.In the seven years ensuing the youngest son, Thomas, has remained in the home with his grandmother, Merle Brannan, who has cared for his every need.Appellee-father remarried and moved into his own home, taking with him his two older children and leaving the youngest son, Thomas, with the grandmother.In 1971, when Thomas was approximately seven years old, appellee-grandmother petitioned the court for his adoption.Both appellant-mother and appellee-father had executed consents for the adoption of Thomas by his grandmother, but appellant later was successful in having her consent to the adoption set aside on the grounds of coercion.Shortly after the institution of the adoption proceedings by the grandmother, appellant filed her petition in this cause seeking an order modifying the custody provisions of the final decree of divorce and praying that custody of all three children born of the marriage between appellant and appellee-father be granted to her.Appellant's petition for modification was consolidated for the purpose of hearing with the grandmother's petition to adopt Thomas as her child.Upon a final consideration of this cause, the trial court entered its judgment denying appellant's petition for custody of all three minor children born of this marriage; denying appellee-grandmother's petition for adoption of Thomas; and awarding Thomas' custody to the grandmother with the requirement that appellant-mother and appellee-father each pay to the grandmother the weekly sum of $8.00 for the care, support and maintenance of Thomas while in the custody of his grandmother.It is the correctness of this order which appellant challenges on this appeal.

It is appellant's position that the trial court abused its discretion and committed reversible error when he withdrew from her the custody of her minor son and awarded such custody to appellee-grandmother.Appellant points to the absence in the record of any competent or substantial evidence showing her to be an unfit person or incapable of adequately caring for her child and providing for his maintenance and support.Under the circumstances appellant asserts that her right to the custody of her child is paramount to that of the grandmother who occupies the...