Frazier v. Frazier

• Decision Date: 21 March 1933
• Citation: 147 So. 464,109 Fla. 164
• Parties: FRAZIER v. FRAZIER et al.
• Court: Florida Supreme Court

147 So. 464

109 Fla. 164

FRAZIER v. FRAZIER et al.

Florida Supreme Court

March 21, 1933

Rehearing Denied April 19, 1933.

En Banc.

Proceeding between Frank Duff Frazier and Brenda Frazier, now Brenda Watriss, and another. From a decree modifying a divorce decree, in so far as it fixed the custody and control of Diana Frazier, a minor, Frank Duff Frazier appeals.

Affirmed in part, reversed in part, and remanded.

BUFORD and BROWN, JJ., dissenting. Appeal from Circuit Court, Palm Beach County C. E. Chillingworth, judge.

COUNSEL

Wideman Wideman & Wardlaw, of West Palm Beach, and Jackson, Fuller Nash & Brophy, of New York City, for appellant.

Robert H. Anderson and Valz & Wise, all of Jacksonville, Sullivan & Donovan, of New York City, and Leslie R. Naftzger, of Paris, France, for appellees.

OPINION

PER CURIAM.

On January 20, 1926, a decree of divorce was entered in the circuit court of Palm Beach county divorcing Brenda Frazier from her husband, Frank Duff Frazier, on the ground of desertion. In that decree it was provided, pursuant to a written stipulation of the dparties, accepted and approved by the chancellor, that the custody and control of the only child born of the marriage, Diana Frazier, be awarded as follows: 'The said child Diana shall remain in the custody of her paternal grandmother, Clara Duff Frazier until the 15th day of May, 1926, and thereafter from October 15th until the succeeding May 15th in each year, such custody to be deemed that of the defendant (Frank Duff Frazier); and from May 15th, 1926 until October 15th, 1926, and from May 15th until October 15th in each succeeding year, the said Diana shall be in the custody of the complainant, Brenda Frazier. In the event of the death of said Clara Duff Frazier, the custody of the said child, Diana, shall be equally divided between complainant and defendant.

There were additional provisions in the decree affecting Diana's custody, which are not material to be recited here.

On February 8, 1928, petition for modification of the decree affecting Diana's custody was filed by her mother, who by marriage had become Brenda Frazier Watriss.

On November 17, 1931, after volumes of testimony had been taken and submitted to the court for and against the petition of the mother, and a counter petition which had been filed by the father, the court entered an order amending the final decree, by awarding the custody and control of the child, Diana, to her mother, Brenda Frazier Watriss.

The amended decree provided that Frank Duff Frazier, the father, should have leave to visit with Diana at all reasonable and convenient times and places, and that he should have 'leave' to have his daughter, Diana, visit him at his expense at some reasonable and convenient place and time or times, which in each calendar year should not exceed the aggregate of two weeks.

This appeal has been taken by the father, Frank Duff Frazier, to the order amending the final decree. It has previously been dealt with by an opinion filed in this cause on the 14th day of January, 1932, reported in 104 Fla. ----, 139 So. 189, with respect to appellant's motion for allowance of a supersedeas pending this appeal.

The original decree of January 26, 1926, in accordance with a written stipulation between the parents of the child, filed in the record and approved in the decree, divided the custody of the child equally between the child's father and mother, after the death of Clara Duff Frazier, the grandmother. The amendment to the final decree, which is not appealed from, in practical operation and effect, to all intents and purposes, entirely deprives the child's father of any substantial right to its custody. This is so because, with the exception of a two weeks' period out of each year during which the father is granted 'leave' to have his child visit him, the custody is given entirely to the mother and her latest husband.

The original decree reserved the right of the court to modify it at some future date should occasion require such modification with respect to Diana's custody. This is an authorizer provision in such decrees, because no decree made at the time of granting divorce can anticipate changes which may later occur that will necessitate modifying the decree for those sufficient causes that the courts have recognized as warranting a court in changing its decrees fixing the custody of children when brought to the court's attention.

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. Meadows v. Meadows, 78 Fla. 576, 83 So. 392. But it is likewise the law that a decree in a divorce suit, fixing the custody of a child of the parents being divorced, whether based on a stipulation entered into by the parties and approved by the court, or whether entered by the court after adversary hearing and determination of a contested issue respecting the matter, is nevertheless a final decree of the court on the conditions then existing, and is not to be materially amended or changed afterward, unless on altered conditions shown to have arisen since the decree, or because of material facts bearing on the question of custody and existing at the time of the decree, but which were unknown to the court, and then only for the welfare of the child. Cariens v. Cariens, 50 W.Va. 113, 40 S.E. 335, 55 L. R. A. 930; Dawson v. Dawson, 57 W.Va. 520, 50 S.E. 613, 110 Am. St. Rep. 800; Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, L. R. A. 1916B, 977; 19 C.J. 350.

The proper rule is that a decree in a divorce case providing for the custody and care of a child of the marriage is to be regarded as res adjudicata as of the time of the decree, but attributing such effect to it does not prevent a subsequent adjudication in the same jurisdiction touching the custody and maintenance of the child. Ann. Cas. 1916b, 894 note; Meadows v. Meadows, supra.

The statutes of this state recognize the natural, inherent, and consequently legal, right of parents to have the custody of their children. This a principle resulting from their obligation to maintain, protect, and educate them. See chapter 8478, Acts of 1921, section 5884, C. G. L. These duties are thrown upon parents by the laws of nature as well as of society and the state.

The primary duty of support and maintenance for children rests upon the father--a duty he is not permitted to disregard, and which he could not conveniently discharge if the objects of his duty are entirely withdrawn from his control. 9 R. C. L. 471. Consequently, when a court is called upon, after divorce of the parents, to determine who shall have the custody and care of children of the marriage, it must take into consideration all of the circumstances of each particular case, and dispose of the children in such manner as may preserve, as far as practicable, the rights of the parents, and which also appear best calculated to secure for the children proper care and attention, as well as virtuous education.

The welfare of the child must, of course, be regarded as the chief consideration, Hernandez v. Thomas, 50 Fla. 522, 39 So. 641, 2 L. R. A. (N. S.) 203, 111 Am. St. Rep. 137, 7 Ann. Cas. 446, but the inherent rights of parents to enjoy the society and association of their offspring, with reasonable opportunity to impress upon them a father's or a mother's love and affection in their upbringing, must be regarded as being of an equally important, if not controlling, consideration in adjusting the right of custody as between parents in ordinary cases. No relationship in life should be regarded as more sublime, nor should any inherent right of an individual be esteemed more highly, than that which arises out of the natural relationship of love and affection which normally exists between parent and child, regardless of what may be the private individual code of morals, or the race, color, creed, or station in life of the father or mother.

In awarding the custody of a child in the first instance, a very large discretion must be permitted to the chancellor, and this court has many times so recognized that such is the applicable rule of law. But the discretion is a judicial discretion even in such cases, and is subject to judicial review. Harris v. Harris, 115 N.C. 587, 20 S.E. 187, 44 Am. St. Rep. 471; Cohn v. Scott, 231 Ill. 556, 83 N.E. 191, 121 Am. St. Rep. 342. The dominant thought is that children are not chattels, but intelligent and moral beings, and that, as such, their welfare and happiness is of first consideration. Kenner v Kenner, 139 Tenn. 211, 201 S.W. 779, L. R. A. 1918E, 587. But the fact that a child would have better prospects or advantages in the custody of one parent than in that of the other, and that one is able to do much for the child that the other is not, has never been considered as a controlling factor in determining the...