Dinkel v. Dinkel
| Decision Date | 14 August 1975 |
| Docket Number | No. 46764,46764 |
| Citation | 322 So.2d 22 |
| Parties | Linda A. DINKEL, Petitioner, v. Darrell G. DINKEL, Respondent. |
| Court | Florida Supreme Court |
James W. Grimsley of Smith, Grimsley, Barron & Remington, Ft. Walton Beach, for petitioner.
D. Michael Chesser, Ft. Walton Beach, for respondent.
Upon petition for certiorari to review the opinion of the District Court of Appeal, First District, at 305 So.2d 90 (1974), conflict appears with the myriad cases setting forth the rule that in the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed. Grant v. Corbitt, 95 So.2d 25 (Fla.1957); Green v. Green, 254 So.2d 860 (Fla.App.1st, 1971); and Harrison v. Harrison, 165 So.2d 235 (Fla.App.2nd 1966).
The only contested issue before the trial court in this proceeding for dissolution of marriage was the matter of custody of the parties' three-year-old child.
In any child custody proceeding, the welfare of the child is the prime consideration. Green v. Green, supra. Although a spouse has committed adultery, it may nonetheless be in the best interest of the child that custody be awarded to that spouse. Anderson v. Anderson, 205 So.2d 341 (Fla.App.2nd, 1967). As stated in McAnespie v. McAnespie, 200 So.2d 606, (Fla.App.2nd, 1957):
(Emphasis supplied) (p. 609)
The District Court of Appeal in the case Sub judice recognized these rules. Although the District Court referred to the 'moral unfitness' of the mother, there is nothing in the opinion which indicates that such 'moral unfitness' had any 'direct bearing on the welfare of the child.' There is conflict and we have jurisdiction.
Petitioner admitted having sexual relations over a period of time with one man while she was married to respondent. During the time petitioner was having an affair with a co-teacher, respondent was overseas in military service. Although the sexual activity was carried on while the subject child was present in the two-bedroom mobile home, it was never performed in front of the child.
Although contradictory testimony was presented at the trial, the record contains competent substantial evidence to show that petitioner is an attentive, intelligent, loving and responsible parent whose adulterous activity did not adversely affect the child.
After holding two separate hearings and listening to twelve witnesses present over 230 pages of testimony, the trial judge entered a judgment awarding custody of the child to petitioner giving extensive visitation rights to respondent. In the final judgment, the trial judge found that although petitioner had committed adultery, it is in the best interest of the minor child that custody be awarded to petitioner.
The District Court reversed the award of custody of the minor child to petitioner and found that, because petitioner had committed adultery in the presence of her child, she was an unfit mother, and therefore not entitled to custody.
Adultery may or may not have a direct bearing on the welfare of a child of tender years. Engaging in sexual intercourse with someone other than one's spouse in the same household where the subject child is present does not necessarily affect the child's welfare. Whether the adultery has a direct bearing on the welfare of the child is a question for the trier of fact. Where the trier of fact determines that the spouse's adultery does not have any bearing on the welfare of the child, the act of adultery should not be taken into consideration in reaching the question of custody of the child.
Where the trier of fact reaches the conclusion that the adulterous conduct adversely affects the child, the scales are tipped against the award of custody to the adulterous spouse....
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Von Eiff v. Azicri, 96-3273
...evidence supporting the trial court's finding that visitation with her grandparents is in Kelly's best interests. See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). However, while we agree with that part of the trial court's order finding visitation proper, we find under these circumstances tha......
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