Frye v. Frye
| Decision Date | 06 December 1967 |
| Docket Number | No. 1587,1587 |
| Citation | 205 So.2d 310 |
| Parties | Eugene FRYE, Appellant, v. Shirley Anne FRYE, Appellee. |
| Court | Florida District Court of Appeals |
Robert G. Murrell, of Sam E. Murrell & Sons, Orlando, for appellant.
Salvatore R. Scarito, of Fernandez, Scarito & Kirk, Orlando, for appellee.
This is an interlocutory appeal by the defendant, Eugene Frye, from an amended order of the Circuit Court for Orange County granting permanent care, custody and control of the parties' three minor children to the plaintiff, Shirley Anne Frye, together with support monies. We reverse.
The parties, lawfully married with three children born as issue, were divorced in Orange County by a final decree of divorce dated February 18, 1964, which pursuant to stipulation placed the custody of the children, then ages four, three and two years, with the defendant. The plaintiff then remarried but left her second husband and returned to live with the defendant during September, 1964. While living with the defendant the plaintiff obtained a divorce from her second husband. On October 22, 1966, plaintiff, claiming marriage by common law, filed this action in Orange County for divorce against the defendant and sought custody of the children. An amended complaint for divorce and custody was filed on November 14, 1966. Testimony discloses the parties ceased living together on November 4, 1966, with the plaintiff taking custody of the children.
The amended complaint did not allege or otherwise plead the order of the divorce court relative to custody. The defendant joined issue with the amended complaint by a general denial and affirmatively pleaded the divorce court's decree and stipulation on custody, attached copies thereof to the answer, and generally alleged the unfitness of the plaintiff for custody and the fitness of the defendant. The court, without testimony, placed the temporary custody of the children with the plaintiff on November 10, 1966. By order dated December 27, 1966, followed by a final summary judgment on January 23, 1967, the court decreed that no common law marriage existed but reserved disposition on the matter of custody. Following final hearing and taking of testimony, the court entered the order appealed dated June 6, 1967, granting permanent custody of the children to the plaintiff and awarding child support.
The first question presented is whether or not the trial court had jurisdiction to make any custodial disposition of the Frye children at all. We find that it did. A subsidiary inquiry inextricably bound up with such a determination is whether jurisdiction of the trial court was invoked originally by plaintiff's complaint incident to her suit for divorce, or whether the jurisdiction invoked was that continuing from the first divorce decree entered by the same court three years earlier.
By filing a complaint that sought both dissolution of her supposed matrimonial bonds and a determination of custody of her children, plaintiff in reality asked the court to take jurisdiction of two separate matters. Cone v. Cone, Fla.1953, 62 So.2d 907. The jurisdiction of the court regarding custody, once acquired, continues regardless of the outcome of the actual divorce litigation. Stewart v. Stewart, 1946, 156 Fla. 815, 24 So.2d 529; Duke v. Duke, 1933, 109 Fla. 325, 147 So. 588. Thus in normal circumstances if a woman files for divorce and seeks custody of her children and it is determined that the woman was never validly married, the court could nevertheless retain jurisdiction to determine custody of the children.
But we cannot draw upon this source of jurisdiction here because of the unusual circumstance of a prior divorce and custody decree. When plaintiff and defendant were first divorced in 1964 the court placed custody of the children with the defendant. The law is settled that once a court makes a custodial determination it retains jurisdiction to modify its custody orders at any time prior to the child's majority. Bohn v. Rhoades, Fla.1960, 121 So.2d 777; Schraner v. Schraner, Fla.App.1959, 110 So.2d 33. This continuing jurisdiction to modify its own decree is generally considered exclusive to the divorce court. 27B C.J.S. Divorce § 303, annotation 146 A.L.R. 1153. It follows that in the case sub judice the divorce court's (Orange County Circuit Court) continuing exclusive jurisdiction had not been disturbed. Had plaintiff and defendant been validly remarried even by common law the divorce decree would have been a nullity and the parties restored to joint custody and control of their children. 27B C.J.S. Divorce § 314. The continuing jurisdiction of the original divorce court then would have been terminated by such remarriage and a court in a second divorce suit would have been free to make a new custody order. F.S.A. § 65.14.
But where, as here, the attempt at remarriage is legally ineffective the original divorce court's custody jurisdiction continues to the exclusion of a second court where the supposed marriage is asked to be dissolved. Coincidentally, however, plaintiff sought her second divorce in the same court that rendered the first divorce decree; the court then continues to posses exclusive jurisdiction to modify its custody order.
Therefore the Circuit Court for Orange County has no original jurisdiction to determine custody of the Frye children incident to plaintiff's complaint for divorce because the Circuit Court for Orange County has retained exclusive jurisdiction to modify its previous order of custody. The difference would at first appear meaningless inasmuch as the same court has jurisdiction to determine the same question, custody. The importance of the distinction lies in what plaintiff must show to obtain a change in custody. In order to modify an existing custodial order plaintiff must allege and prove a substantial change in circumstances or conditions since the time the decree was entered. Sayward v. Sayward, Fla.1949, 43 So.2d 865; Belford v. Belford, 1947, 159 Fla. 547, 32 So.2d 312. On the other hand, in an original determination the court is free to make a discretionary disposition in the best interests of the children. Once such initial decision is rendered the burden is on him who would change it to present a reason in the form of some change in conditions. The court does not have the same degree of discretion to modify custody as it does to enter an original decree. Belford v. Belford, supra. This difference makes it important to discover the source of the trial court's jurisdiction.
In this cause the trial court's jurisdiction must be under...
To continue reading
Request your trial
-
Clark v. Boeing Co.
...requires warning or direction in its use, remains unimpaired. It should be noted, however, that both cases cited in the statement at 205 So.2d 310 which is quoted in the court's opinion have since been repudiated by the supreme court; Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.196......
-
Hare v. Potter, 2404
...317. Additionally, I am mindful that our law strongly favors the placing of custody of minor children with their mother. Frye v. Frye, Fla.App.1967, 205 So.2d 310; Jones v. Jones, supra. The trial court found 'the children's welfare would be well served in either home.' Giving credence to t......
- Coba v. Tricam Indus., Inc.
-
Williams v. Starnes
...114 So.2d at 498. Rhoades also involved an interstate custody dispute. The present state of the rule was announced in Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967), a case that did not involve either an interstate or intrastate custody dispute. In Frye the husband and wife were divorced i......