Gardner v. Gardner, 88-3028

Decision Date17 May 1989
Docket NumberNo. 88-3028,88-3028
Citation545 So.2d 339,14 Fla. L. Weekly 1219
Parties14 Fla. L. Weekly 1219 Susan J. GARDNER, Appellant, v. David F. GARDNER, Appellee.
CourtFlorida District Court of Appeals

Gary S. Maisel of Patterson, Maloney & Gardiner, Fort Lauderdale, for appellant.

James I. Cohn of James I. Cohn, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

This is an appeal from a final judgment in a dissolution action in which the mother challenges the provisions for child custody and support and payment of a credit card debt. We affirm.

We have reviewed the entire record and conclude that there is substantial competent evidence to support the decision of the trial court to award primary residential custody of the parties' son to the father. The test on review of a custody decision is not to determine what we would have done, but rather to determine if there is substantial competent evidence to support the trial court's decision. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Only if we determine that no reasonable person could take the view of the trial court, are we authorized to reverse. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

While on the cold record we may have decided the custody issue the other way, we believe the trial judge could have concluded that the father was a good parent before the separation of the parties; that the child had lived in the same home environment since his birth and would be better off continuing in that environment (including the child's private school); that the child wanted to remain in that environment and with the father; that the child was old enough (by now a teenager) and mature enough to be involved in the decision-making process; and that the father had devoted substantial attention to the child and his activities since the separation. The child had been in the temporary custody of the father for the approximate two-year period between the time the mother left and the final judgment was entered. On the other hand, it is apparent that the father reacted emotionally and immaturely to the wife's departure and improperly used the child as a means of taking out his anger against his wife. We simply believe the trial judge was the one to balance these considerations. Barnhill v. Barnhill, 353 So.2d 923 (Fla. 4th DCA 1978). We find no abuse of discretion on the child custody or support issue. 1

We also find no abuse of discretion on the credit card issue. Neither party submitted proof of the actual charges made on the account. Rather, both testified that they had paid their part of the obligation. With the record in this posture, we do not believe an abuse of discretion has been demonstrated.

ANSTEAD and GARRETT, JJ., concur.

LETTS, J., dissents with opinion.

LETTS, Judge, dissenting.

Based on the record, I cannot agree with the grant of residential custody to the father. In the final judgment, the trial court based its conclusion on the twelve-year-old boy's testimony that he "wanted to live with his father." This is admittedly one of the statutory criteria to be considered under section 61.13(3), Florida Statutes (1987), but it is no panacea. The panacea, under the facts of this case, is the best interests of the child. Other criteria in that same statute include the mental health of the parents and which parent is more likely to allow the child frequent and continuing contact with his nonresidential parent. The record reveals, as plainly as the nose on my face, that this father is not in good mental health so far as his ex-wife and son are concerned. The spate of vilifying hate letters regarding his ex-wife, (which, on one occasion, required the son's services as mail carrier) confirm the "highly immature emotional control" attributed to the father by ...

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4 cases
  • Young v. Hector
    • United States
    • Florida District Court of Appeals
    • June 24, 1998
    ...v. Duchesneau, 692 So.2d 205, 206 (Fla. 5th DCA 1997); Cherradi v. Lavoie, 662 So.2d 751, 753 (Fla. 4th DCA 1995); Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th DCA 1989); Quirino v. Quirino, 459 So.2d 1183 (Fla. 3d DCA A trial court's decision as to which parent should be awarded primar......
  • Cherradi v. Lavoie
    • United States
    • Florida District Court of Appeals
    • November 15, 1995
    ...where there is competent substantial evidence to support an award of primary residential custody to either parent. Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th DCA 1989). However, we cannot disregard the fact that the trial court expressly applied the tender years doctrine after finding......
  • Keitel v. Keitel, No. 97-0748
    • United States
    • Florida District Court of Appeals
    • January 27, 1999
    ...substantial evidence supporting the trial court's decision to award primary residential custody to appellee. Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th DCA 1989). Next, appellant argues that the trial court erred by providing a "standard visitation schedule." "[I]n matters of child vi......
  • Rogers v. Rogers, 92-2300
    • United States
    • Florida District Court of Appeals
    • July 26, 1994
    ...Before BARKDULL, NESBITT and GODERICH, JJ. PER CURIAM. Affirmed. Vena v. Vena, 556 So.2d 436 (Fla. 5th DCA 1990); Gardner v. Gardner, 545 So.2d 339 (Fla. 4th DCA 1989); Richardson v. Richardson, 442 So.2d 1005 (Fla. 3d DCA 1983); Whitney v. Whitney, 402 So.2d 1351 (Fla. 4th DCA 1981); see D......

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