Gregory, In re

• Citation: 313 So.2d 735
• Decision Date: 19 March 1975
• Docket Number: Nos. 45146 and 45293,s. 45146 and 45293
• Parties: In re William A. GREGORY, Jr. William A. GREGORY, Petitioner, v. Mary Elizabeth GREGORY, Respondent. William A. GREGORY, Petitioner, v. Mary Elizabeth GREGORY, Respondent.
• Court: Florida Supreme Court

Page 735

313 So.2d 735

In re William A. GREGORY, Jr.

William A. GREGORY, Petitioner, v. Mary Elizabeth GREGORY, Respondent.

William A. GREGORY, Petitioner, v. Mary Elizabeth GREGORY, Respondent.

Nos. 45146 and 45293.

Supreme Court of Florida.

March 19, 1975.

David A. Maney, Gordon & Maney, Tampa, for petitioner.

George W. Phillips, Tampa, for respondent.

ADKINS, Chief Justice:

These consolidated cases (reviewed by this Court without oral argument) were stimulated by a post-decretal order allowing permanent change of custody of the minor son of the parties hereto some 16 months after their divorce. We have jurisdiction pursuant to Article V, § 3(b)(3), Florida Constitution.

William A. Gregory, hereinafter refered to as 'father', desired custody of his minor son, Michael (who was age 13 at the time of entry of the Order granting the requested change--August 27, 1973), and proceeded with his petition or motion for the change. Mary Elizabeth Gregory, hereinafter referred to as 'mother', filed her objections.

During August 1973 several hearings were held and testimony received relative to the permanent custody of the son. At one stage in the proceedings the mother moved for a continuance, however, the trial judge refused to grant it stating, among other things, 'We will give both sides an opportunity to produce further evidence.' Then, upon the mother's objection to taking further testimony, the trial judge stated '. . . I will be more than willing to grant further continuances for the production of further testimony, as either attorney may wish.'

Thereafter, no further motions for continuance were filed by the mother, and on August 27, 1973, the trial judge issued his final order finding 'that the best interest of the child will be served by entrusting his care and custody to the father.' This order modifying the final judgment of divorce contained the following:

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the petitioner, William A. Gregory, Jr., shall have the permanent care, custody, and control of Michael Gregory, the minor child of the parties, subject to reasonable rights of visitation by his mother, Mary Elizabeth Gregory, which shall include every other week-end to be spent with the mother and a reasonable period of visitation during school vacation periods. Each party is to bear his or her own costs and attorney's fees incurred herein.'

The mother appealed (interlocutory) this order and the father responded. The Second District Court of Appeal, over objections of the father, granted leave to the mother to file a supplemental appendix consisting of copies of the Complete transcript of the trial proceedings. This was followed by the final opinion of the District Court stating in pertinent part: 'The mother's motion for continuance was denied. We think this was error.'

Certainly there can be little doubt that the granting or denying of a motion for a continuance is left to the sound discretion of the trial court. The record before this Court fails to demonstrate that the trial judge abused his discretion in any fashion. To the contrary, the judge remained open to receive additional testimony by the parties, however, each presented all available testimony and the judge correctly proceeded to rule thereon. As early as Bolles v. Carson, 73 Fla. 504, 74 So. 509, 510 (1917), this Court stated that a denial of such a motion should not be reversed in the absence of a clear and affirmative showing that there was a

'(P)alpable abuse of discretion by the trial court, in denying the motion for a continuance, to the detriment of the defendant.'

Our continued and further review of the record herein fails to reveal any resultant prejudice to the mother. The District Court simply substituted its opinion for that of the trial judge and therefore cannot stand. See also Peacock et al. v. Feaster, 51 Fla. 269, 40 So. 74 (1906), and Seaboard Airline Ry. v. Scarborough, 52 Fla. 425, 42 So. 706 (1906); Greenwood v. Oates, 251 So.2d 665 (Fla.1971); and 2 Fla.Jur. 721, Appeals, § 346.

The District Court also concluded that since the child had been with the father almost immediately prior to custody hearing, there was too great a probability that the son's testimony was tainted. However, the District Court equally observed that 'We expressly do not hold that the trial judge arrived at the wrong decision. Much of the testimony about the mother's temper and inattention to the boy is, if credited, serious enough to warrant a change in custody . . ..' Finally, the District Court concluded, 'The order appealed from is vacated to the extent that it is final, reinstated as an order respecting temporary custody, and the cause is remanded for further proceedings consistent with this opinion.'

Turning now to the merits of the child custody change, the salient facts (although controverted) presented at the hearings and dispositive of the issues before us are as follows.

During 1973 (prior to the hearing on custody), the son stayed with his father some 170 days, however, in 1972 he also was with his father approximately 190 days.

The son candidly stated his Preference to be in custody of his father, however, it was also established that the son was left alone (while custody was vested with the mother) two or three evenings...