Copeland v. Copeland

CourtUnited States State Supreme Court of Florida
Writing for the CourtTHOMAS; ROBERTS; ROBERTS
Citation65 So.2d 853
Decision Date02 June 1953
PartiesCOPELAND v. COPELAND. COPELAND v. COPELAND by THERRELL.

Page 853

65 So.2d 853
COPELAND

v.
COPELAND.
COPELAND
v.
COPELAND by THERRELL.
Supreme Court of Florida, en Banc.
June 2, 1953.
Rehearing Denied July 20, 1953.

Page 854

Aronovitz & Aronovitz, Miami, for appellant.

Sibley & Davis, Miami Beach, for appellee.

THOMAS, Justice.

A bill of complaint was filed by the appellant, Isabel Copeland, against her husband, Edward Rivers Copeland, by which the plaintiff sought separate maintenance and the custody of the parties' infant boy.

In his answer the defendant-husband prayed that the court grant him a divorce and the custody of the child, and that the court decree that two pieces of property jointly owned by him and his wife were, in the circumstances alleged, his alone in fee simple.

During the progress of the suit the husband died so the question of divorce was eliminated and the chancellor thereafter confined his consideration to the welfare of the child and status of the property.

The mambers of this court are in agreement in the view there was overwhelming testimony to support the chancellor's conclusion that the conduct and habits of the appellant and her treatment of the child demonstrated her unfitness to rear him and that he should remain in the custody of the persons named by the chancellor who had for a long period of time given him the excellent care he deserved. Of course, this custody may be altered whenever the mother can convince the chancellor that she has become rehabilitated.

After the father died the infant, through his next friend, instituted a suit for a declaratory decree defining his interest in the properties. The two suits were consolidated and we now, having decided that the chancellor's ruling fixing the custody of the child should not be disturbed, focus our attention on the question constituting a challenge to the provisions of the decree relating to the two tracts of land.

In reviewing the facts about the conveyances, it is important to bear in mind the chronology of relevant events. The parties were married in August, 1941. In October, 1941, and in April, 1942, deeds were executed to them as man and wife conveying the two tracts respectively and creating the estates by entireties. On April, 1943, the little boy was born. More than eight years after his birth and about ten years after the deeds were executed the husband first questioned the state of title by claiming in his answer that: 'The property was conveyed to him and the plaintiff as tenants by the entireties, upon the assumption and belief that it was the plaintiff's intention, in good faith, to strive to make the defendant a comfortable home life and to be a proper wife to the defendant.' We have italicized that part of the quotation serving as an introduction to the contention of the appellee which the chancellor upheld.

It appears from the allegation just quoted and underscored that the creation of the estates by the entreties was claimed to have been founded on the assumption by

Page 855

the husband that his bride would make a good wife and, conversely, that if she did not fulfill his expectations the estates would determine because the consideration would have failed. There can be no doubt about this position for in the appellee's brief it is asserted that the wife by 'her own actions vitiated any consideration upon which title was taken as estates by the entireties * * *.' The chancellor adopted this view when he recited that it was 'apparent [from the counterclaim that the husband] created the tenancy by the entireties * * * with the intention of bestowing a gift upon his young wife upon the condition subsequent, nevertheless, that she would fully discharge her duties and obligations of her marital vows as his wife.'

We think it is fitting her to repeat that to these persons a child was born after the last conveyance was arranged by the husband. So, obviously, the marriage had an auspicious beginning, even if it did later go upon the rocks. And it is well to repeat that it was many years later when the husband had been brought into court that he first questioned the validity of his wife's interest.

We are frank to say that we have taken into consideration the fact that the father was a respected and able member of this bar, and the presumption that during the intervening years he knew well the effect of the instruments.

The disposition of the question by the chancellor is most appealing as securing to the deserving child an interest which he could not get upon upholding the integrity of the estates intended to be created by the husband through the deeds to himself and his wife, but we believe that if we were to approve this decision of the question we would at once do what appeared to be justice in an individual case while disturbing settled principles of...

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2 practice notes
  • Variety Children's Hospital, Inc. v. Vigliotti, No. 79-959
    • United States
    • Florida District Court of Appeals
    • June 10, 1980
    ...the family only when the father could not fulfill this obligation. See State v. S.M.G., 313 So.2d 761 (Fla. 1975); Copeland v. Copeland, 65 So.2d 853 (Fla. 1953); and Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967). Recently, however, "the unity concept of marriage has in a large ......
  • Weisman v. Weisman, No. 61-608
    • United States
    • Florida District Court of Appeals
    • May 29, 1962
    ...we hold that the finding of the chancellor that fraud was not proved is supported by the evidence. Cf. Copeland v. Copeland, Fla.1953, 65 So.2d 853. ...
2 cases
  • Variety Children's Hospital, Inc. v. Vigliotti, No. 79-959
    • United States
    • Florida District Court of Appeals
    • June 10, 1980
    ...the family only when the father could not fulfill this obligation. See State v. S.M.G., 313 So.2d 761 (Fla. 1975); Copeland v. Copeland, 65 So.2d 853 (Fla. 1953); and Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967). Recently, however, "the unity concept of marriage has in a large ......
  • Weisman v. Weisman, No. 61-608
    • United States
    • Florida District Court of Appeals
    • May 29, 1962
    ...we hold that the finding of the chancellor that fraud was not proved is supported by the evidence. Cf. Copeland v. Copeland, Fla.1953, 65 So.2d 853. ...

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