Cortina v. Cortina

• Decision Date: 19 December 1958
• Docket Number: No. 655,655
• Citation: 108 So. 2d 63
• Parties: Katherine A. CORTINA, Appellant, v. Fred A. CORTINA, Appellee.
• Court: Florida District Court of Appeals

Page 63

108 So.2d 63

Katherine A. CORTINA, Appellant, v.Fred A. CORTINA, Appellee.

No. 655.

District Court of Appeal of Florida, Second District.

Dec. 19, 1958.

Rehearing Denied Jan. 20, 1959.

Paul B. Johnson, Tampa, for appellant.

J. W. Dupree, Tampa, for appellee.

ALLEN, Judge.

This is an appeal from an order subsequent to the final decree in a divorce suit.Katherine A. Cortina filed suit for divorce against her husband, Fred A. Cortina, in April, 1955.The husband filed a counterclaim also seeking a divorce.A final decree was entered in December, 1955, granting Fred A. Cortina a divorce, giving custody of a daughter to the mother, Katherine A. Cortina, and requiring child support and certain mortgage payments from the husband-father.

Two months later, Fred A. Cortina instituted contempt proceedings for alleged violation of the decree provisions by the wife, and the chancellor modified the decree, as to support and mortgage payments, by an order dated February 3, 1956.Katherine A. Cortina appealed to the Florida Supreme Court, and that Court held that the chancellor's amendatory order of February 3, 1956, was, 'at least, voidable' because the issues presented by the contempt proceeding did not include the issues determined by the amendatory order.SeeCortina v. Cortina, Fla.1957, 98 So.2d 334.

Subsequent to the return of the mandate, Fred A. Cortina filed a petition for modification of the original decree.After hearing, the chancellor again amended the final decree by relieving defendant of any financial obligation to plaintiff, Katherine A. Cortina, or to the parties' nineteen year old daughter.This order was entered March 13, 1958, and is the subject of the appeal to this court.

The defendant's petition for amendment of the final decree stated, as grounds, the allegations that he had been denied visitation rights since entry of the final decree and that he was financially destitute.

Testimony was taken before the court, at which time a medical witness testified against permitting the husband-father to see the subject child.The testimony of the parties was also taken.

Fred A. Cortina testified that he was deeply in debt for money borrowed, that he was not able to make the payments, and was physically incapacitated.The lower court concluded from the testimony that the reason visitation was denied was the fault of the daughter, 'which the mother, who is the plaintiff here, does not intend to correct.'

The court, in its decree, said:

'There are two fundamental musts in handling a case of this kind.The first is that the father must support his child.The second is that if he does support the child, he shall have the right to see the child.Since the mother and the child in this case have expressed the view that the child shall not see the father, it is

'Ordered, Adjudged And Decreed that the part of the decree requiring the defendant to pay $10.00 per week toward the...