Cone v. Cone

• Decision Date: 18 December 1953
• Citation: 68 So.2d 886
• Parties: CONE v. CONE et al. EVANS v. CONE.
• Court: Florida Supreme Court

Page 886

68 So.2d 886

CONE v. CONE et al.

EVANS v. CONE.

Supreme Court of Florida, En Banc.

Dec. 18, 1953.

Redfearn & Ferrell, Miami, for petitioner.

Milton R. Wasmas, Miami, for respondent.

PER CURIAM.

Alice Evans Cone and Allen Michael Cone were divorced in July 1950. The custody of their children, Michael Bryan Cone and Tonia Roberta Cone, ages 9 and 6 respectively, were awarded to the mother, the father being required to pay her $20 per week for their support. July 30, 1952, Alice Evans Cone was killed in an automobile accident on a trip to Alaska. Thereupon, Allen Michael Cone petitioned the Court to modify the divorce decree so as to give him custody of the children. He alleged that they were in custody of Mrs. Lillian B. Evans, their grandmother, who was permitted to intervene.

On final hearing the chancellor modified the divorce decree and awarded custody of the children to petitioner. On appeal to this Court that order was quashed and custody was awarded to Mrs. Evans 'with such provisions for visitation by the father and support money for the children as may to the Chancellor seem fitting and proper.' 62 So.2d 907, 910. Thereafter, Mrs. Evans' petition for support of the children was first denied but on rehearing after taking testimony the following order was entered:

'* * * that Allen Michael Cone pay to Lillian B. Evans each week for the use of his children the sum of $5.00 for laundry and school lunches, and $4.00 per week for laundry and dry cleaning after the end of the school year, and that he furnish directly to the children their clothing and amusement and incidental allowance, and that he pay directly such medical and dental expense as he insure, or authorizes (except in the event of an emergency Mrs. Evans may commit Mr. Cone to this type of expense so long as it is reasonable.) Upon 24 hours notice Mr. Cone may visit the children on any weekend of Saturday and Sunday and take them away from home if he wishes. During the summer he may have the children with him for any 4 week period he designates 10 days in advance, paying their transportation from and to the home of Mrs. Evans. No attorney's fee or costs are awarded'.

We are confronted with a petition for certiorari requesting that the quoted order be quashed and that a judgment for costs, attorneys fees and support of the minor children be entered in its place.

The order complained of hardly rises to a token attempt to comply with the order of this Court. A tacit evasion or subterfuge would be a better name for it. The Courts of this country are committed to the doctrine that a trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so. Baskin v. Klemm, 118 Fla. 657, 160 So. 509.

The record discloses that when the petition for support and maintenance was presented to the chancellor he was much disturbed and announced that he would not allow a dime for the support of the children. From this he proceeded to a lip castigation of this Court for its order awarding custody of the children to Mrs. Evans. He pronounced the decision of this Court awarding custody of the children to Mrs. Evans as an outrage, said that it amounted to selling minor children to the highest bidder, taking from the poor and giving to the rich, that it deprived the father of the children and gave them to a stranger and that the justice who wrote the opinion had not even read the record in the cause. He concluded his exhibition by reproaching counsel for Mrs. Evans for suggesting the inappropriateness of his remarks.

The chancellor denies some of the chatter attributable to him, but accepting at face value that which he does not deny, it was a crude, vulgar and unbecoming display of a nasty temper, it was away beneath the dignity of a court of justice and descended to the very mudsills of indecorum. It is common knowledge that judges and their decisions are subject to honest, intelligent, or constructive criticism, even an allowable bit of destructive and uninformed criticism may at times be overlooked from one who will not take the pains to inform himself, but to distort and extract from a judgment the insinuations, the misrepresentations and the innuendoes that were practiced here and pan them off to the public and the press as intelligent or constructive criticism is inexcusable and does nothing but discredit the administration of justice. Calling one names and distorting evidence is not constructive criticism.

When a lawyer dons the ermine and mounts the woolsack he assumes a very serious obligation to the people he serves. Nothing more seriously affects their lives, their property and their safety than his decisions the weight of which is determined by his wisdom and integrity. The ermine is the symbol of purity, honor and wisdom, that brand of wisdom which is the flower of years and experience. From the time he is clothed with judicial authority he is a marked man. His words and his conduct should inspire confidence; he might well strive to honor the bench instead of having it honor him. The judiciary is the capstone of our democracy but it will be so no longer than its deportment warrants.

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