Brock v. Brock, EE-158

• Decision Date: 02 September 1977
• Docket Number: No. EE-158,EE-158
• Parties: Clifton BROCK, husband, Appellant, v. Mary Alice BROCK, wife, Appellee.
• Court: Florida District Court of Appeals

Page 782

349 So.2d 782

Clifton BROCK, husband, Appellant, v. Mary Alice BROCK, wife, Appellee.

No. EE-158.

District Court of Appeal of Florida, First District.

Sept. 2, 1977.

Rehearing Denied Oct. 4, 1977.

John E. Norris of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellant.

David E. Bembry of Davis, Browning & Hardee, Madison, Mary Alice Brock, pro se, for appellee.

YAWN, THERON A., Jr., Associate Judge.

Appellant seeks review of the trial court's order denying his post judgment demand that his former wife be ousted of custody of their minor daughter and her custody awarded to him. He does not rely so much upon his claim of superior fitness as he does upon the fact that the child's mother cohabited with a man to whom she was not married and who testified falsely concerning their relationship, his own marital status and other collateral matters.

After listening to fourteen witnesses present 237 pages of testimony the trial court concluded that:

". . . to remove the child from her present environment would serve only as a punishment to the mother for her one indiscretion rather than as a change for the best interests of the child."

We neither condone nor sanction the conduct of the mother or that of the man with whom she lived. Had we sat as trier of the facts and heard all the conflicting testimony we might have reached a conclusion different from that of the trial judge. We are not at liberty, however, to substitute our judgment for his absent a demonstrated abuse of discretion. The decision of our Supreme Court in Dinkel v. Dinkel, Fla., 322 So.2d 22, and that of this Court in Miller v. Miller, Fla.App., 342 So.2d 85 require that the judgment appealed from be affirmed.

However, in doing so we do not ignore Appellant's contention that:

"There is only one issue before this Court and that is to decide whether perjury and fraud are to be rewarded, condoned and sanctioned and to deny a man, whose character is not questioned, and who can furnish his child with a wholesome environment, the custody of the child he loves."

This argument overlooks the ancient and widely respected principle that the paramount issue in child custody cases is the welfare and best interests of the child itself to which all other considerations, including the wishes, the emotions, and the interests of the disputing parents are, and must remain, subordinate. Judgments in child custody proceedings are instruments for the protection of the child's interests. They are not intended as a reward for the...