Grant v. Corbitt
| Decision Date | 24 April 1957 |
| Citation | 95 So.2d 25 |
| Parties | Beulah GRANT, Appellant, v. Ruby Iva CORBITT, Appellee. |
| Court | Florida Supreme Court |
John P. Wilkerson, Eustis, for appellant.
Harry P. Johnson, Tavares, for appellee.
This is a child custody case. The adversaries are the appellant Beulah Grant (now Beulah Grant Spivey), the child's mother, and the appellee Riby Iva Corbitt, the child's paternal aunt. The child, Kenneth Grant, is fifteen years of age. His mother and father were divorced in 1944 by a decree of the Circuit Court of Lake County, Florida, in which his custody was awarded to the mother. The mother now resides in Georgia, the whereabouts of the father are not shown by the record, and the aunt is a resident of Florida.
Kenneth ran away from his mother's home in Georgia and came to Eustis, Lake County, Florida, where both his paternal grandmother and aunt live, in June 1955. The aunt immediately filed a petition in the Lake County divorce suit, stating among others that Kenneth had run away from home because of the cruel treatment of his mother and stepfather, and asking for temporary and permanent custody of Kenneth. The Chancellor, without notice to the mother, awarded temporary custody of Kenneth to his aunt until the further order of the court. The mother filed a motion to dismiss the petition and vacate the order granting temporary custody to the aunt, and also an answer. The motion to vacate and dismiss was denied and a full hearing was held at which both sides presented evidence in support of their respective claims as to the welfare and custody of Kenneth. After the hearing the Chancellor entered an order continuing the cause for at least 30 days 'for further study by the Court,' and six weeks later filed his order granting permanent custody of Kenneth to his aunt, but retaining jurisdiction 'for the entry of such other and further Orders as may from time to time be necessary.' The mother has appealed.
On this appeal, it is contended on behalf of the mother that the trial court erred in entering the order granting temporary custody to the aunt, who was not a party to the original divorce proceeding, without giving the mother notice and an opportunity to be heard. We agree that this was technically an error. While in proceedings to modify a divorce decree it is not necessary to serve new process on the adverse party, such party is entitled to adequate notice and opportunity to be heard before such decree may be altered in a manner that will directly affect his person, status or property. Moore v. Lee, Fla.1954, 72 So.2d 280, 42 A.L.R.2d 1112. And it was indicated in Hernandez v. Thomas, 1905, 50 Fla. 522, 39 So. 641, 644, 2 L.R.A.,N.S., 203, that it might be procedurally improper to permit a third party to litigate the question of a child's custody by filing a petition in a divorce suit that had long since passed into a final decree of divorce between the child's parents. But the court said in that case that 'inasmuch as it is one of those unfortunate contests over the custody of children, where considerable rancor is manifest, we deemed it best, under all the circumstances of the case, to pass over the technicalities of procedure and to dispose of the case upon its merits.' This language is appropriate here, both as to the propriety of the procedure adopted by the aunt and as to the question of notice and opportunity to be heard. For the mother did, in fact, have a full hearing before the Chancellor on the question of the child's welfare and custody before the entry of the order granting permanent custody to the aunt. It is well settled that the welfare of the child is the paramount consideration in cases of this kind; and the Chancellor found, after the hearing, that the welfare of the boy would be best served by changing his custody from his mother to his aunt....
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People v. Rubin S.
...man would take the view adopted by the trial court.' (Delno v. Market St. Ry. Co., 124 F.2d 965 (9 Cir. 1942); see also, Grant v. Corbitt, Fla., 95 So.2d 25; Peck v. Stone, 32 A.D.2d 506, 304 N.Y.S.2d 881; Murray v. Buell, 74 Wis. 14, 41 N.W. 1010 Hart and Sacks define certain other types o......
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...their mother be designated their primary custodial parent. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980); Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1957); Sullivan v. Sullivan, 668 So.2d 329, 329-30 (Fla. 4th DCA 1996). If there is substantial competent evidence to support the tr......
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McIntyre v. McIntyre, AN-449
...which must be accorded a trial judge's rulings on custody matters by the Dinkel court's quotation (322 So.2d at 24) from Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1957): [T]his court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discret......
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