Cone v. Cone
| Decision Date | 30 January 1953 |
| Citation | 62 So.2d 907 |
| Parties | CONE v. CONE. EVANS v. CONE. |
| Court | Florida Supreme Court |
Redfearn & Ferrell, Miami, for petitioner.
Roth & Williams, Miami, for respondent.
We here review, on certiorari, an order of the Chancellor below respecting the custody of children. The order in question was entered as a modification of a decree previously entered by the Court in divorce proceedings instituted by Alice Evans Cone against Allen Michael Cone, who is the respondent here. By the former decree, which was entered on July 19, 1950, Alice Evans Cone was granted a divorce from the respondent and was also awarded the custody of the two minor children of the parties, Michael Bryan Cone and Tonia Roberta Cone, then aged 9 and 6, respectively. Two years later, on June 30, 1952, Alice Evans Cone was fatally injured in an automobile accident and died.
Thereupon, the respondent filed in the cause a petition for modification of the decree as to the custody of the children, setting forth the foregoing facts, and alleging that the children were now in the custody of the mother of Alice Evans Cone, Mrs. Lilliam B. Evans, that the respondent was a fit and proper person to have the custody of the children, and that in view of the death of their mother, the care, custody and control of the children should now be granted to him. Mrs. Evans, who is the petitioner here, was permitted to intervene in the cause and sought on her part to have the custody of the children awarded to her.
The cause came on for hearing before the Chancellor, and an order modifying the former decree and awarding to the respondent the custody of the children was entered by him. It is this order which we here review on Mrs. Evans' petition for the writ of certiorari.
It is earnestly contended on behalf of the petitioner that the lower court had no jurisdiction to entertain a petition for modification of its former decree for the reasons (1) that the former decree did not expressly retain jurisdiction of the cause as to the custody of the children, and (2) that, in any event, the cause abated on the death of Alice Evans Cone, one of the parties thereto.
We do not understand the law of this state to be that jurisdiction to modify a divorce decree as to custody of the children of the divorced parties is dependent upon an express reservation in the decree of such jurisdiction. See Mehaffey v. Mehaffey, 143 Fla. 157, 196 So. 416; Meadows v. Meadows, 78 Fla. 576, 83 So. 392; Fisher v. Guidy, 106 Fla. 94, 142 So. 818; and Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 465. In the case last cited this court said: 'It is undoubtedly the law of this state that the proper custody of a minor child of divorced parents is a proper subject for judicial consideration at any time by the court which granted the decree of divorce.' This must be so, first, because of the rule that when chancery once acquires jurisdiction over a subject-matter it will continue to exercise that jurisdiction so long and so often as occasion shall require for the purpose of making its decree effective and of granting full and final relief in the premises; and, second, because of the well-recognized principle that, independent of statute, a court of chancery has inherent jurisdiction to control and protect infants and their property. Fisher v. Guidy, supra; Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253. So long, then, as the minor child is within the jurisdiction of the equity court, such court may exercise its continuing jurisdiction to modify its decree as to the custody of the child, even though jurisdiction was not expressly retained therein.
Nor can we sustain the petitioner's contention that jurisdiction to modify such decree as to the custody of the children has been lost on account of the death of one of the parties thereto. It is a well-settled principle of law that divorce proceedings abate upon the death of either of the parties; and, in reliance upon this general principle, it has been held by a great many of the courts passing upon the question that, upon the death of one of the parties divorced by a judicial decree, the court loses its jurisdiction to thereafter entertain a petition for modification of the decree as to the custody of the children. See Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 74 A.L.R. 1348, and cases cited in that annotation. While this general principle is properly applied to abate divorce proceedings when the death of one of the parties occurs prior to the entry of a decree of divorce, it should be noted that it cannot be applied in all cases to defeat jurisdiction after a decree of divorce has been entered. Thus, in Busch v. Busch,...
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