Finney v. Giddens

• Decision Date: 04 March 1998
• Docket Number: No. 96-01007,96-01007
• Citation: 707 So.2d 856
• Parties: 23 Fla. L. Weekly D633 Deborah R. FINNEY, f/k/a Deborah R. Giddens, Appellant, v. Jesse Lee GIDDENS, Appellee.
• Court: Florida District Court of Appeals

Page 856

707 So.2d 856

23 Fla. L. Weekly D633

Deborah R. FINNEY, f/k/a Deborah R. Giddens, Appellant, v.Jesse Lee GIDDENS, Appellee.

No. 96-01007.

District Court of Appeal of Florida Second District.

March 4, 1998.

Tony C. Dodds of Weeks & Dodds, P.A., Lakeland, for Appellant.

No appearance for Appellee.

QUINCE, Judge.

The former wife, Deborah Finney, challenges an order of the trial court modifying the custody provisions of a final judgment of dissolution and striking child support arrearage.We reverse because Jesse Giddens, the former husband, did not demonstrate a substantial and material change in circumstances to justify modification of custody.We also reverse that portion of the order striking the child support arrearage.

Mrs. Finney filed a petition for modification of child support and a petition for determination of outstanding arrearage.Mr. Giddens counterpetitioned for modification of custody and support.The parties were divorced on July 6, 1979, and primary residential custody of their minor children, Jesse Lynn and Lacey Lee, was given to Mrs. Finney.Mr. Giddens was ordered to pay support of $30.00 per week.

On the issue of child support arrearage, Mrs. Finney testified she had only received three payments of $30.00 from Mr. Giddens since the divorce in 1979.On the other hand, Mr. Giddens testified he paid support until the former wife married her present husband; thus, no support had been paid for a period of two and one-half years at the time of the hearing.Additionally, both Giddens and his present wife acknowledged there was a one year period when he could not see the children so he did not pay child support.

On the custody issue, there was conflicting testimony concerning which parent Lacey lived with following Mrs. Finney's remarriage.However, the parties agree that Lacey had lived with her father for at least two months prior to the instigation of these proceedings.Both parties also acknowledged that Lacey has lived with her father on and off over the last two and one-half years.They also indicated Lacey wants to live with her father.

Becky Hosmer, one of Lacey's junior high school teachers, testified that Lacey was having difficulties in school, including excessive absenteeism.Lacey had been placed in a prevention and diversion program for potential dropouts because she was disinterested and unmotivated.Ms. Hosmer further testified that Lacey's inattention had increased during the period she had been living with her father.Ms. Hosmer opined that Lacey's quarterly grades would be lower because of her recent absenteeism.Ms. Hosmer testified that Mrs. Finney contacted her and conferred with her concerning Lacey's problems.Although Ms. Hosmer contacted Mr. Giddens concerning Lacey's school performance, he did not attend the parent-teacher conference or otherwise contact Ms....