Hare v. Potter, 2404

• Decision Date: 25 March 1970
• Docket Number: No. 2404,2404
• Citation: 233 So.2d 653
• Parties: Sandra P. HARE, formerly Sandra P. Potter, Appellant, v. John M. POTTER, Appellee
• Court: Florida District Court of Appeals

Page 653

233 So.2d 653

Sandra P. HARE, formerly Sandra P. Potter, Appellant, v. John M. POTTER, Appellee.

No. 2404.

District Court of Appeal of Florida, Fourth District,

March 25, 1970.

Rehearing Denied April 30, 1970.

Joseph D. Farish, Jr., and Eugene E. Shuey, of Farish & Farish, West Palm Beach, for appellant.

Larry Klein, of Cone, Wagner, Nugent, Johnson, McKeown & Dell, West Palm Beach, for appellee.

TJOFLAT, GERALD BARD, Associate Judge.

This is an interlocutory appeal from an order of the trial court modifying the child visitation provisions of a final judgment of divorce. We have carefully reviewed the record and conclude that there was ample evidence to support the trial judge's settlement of the controversy between the parties about the disposition of the children. Certainly it was within his sound discretion to fashion the visitation provisions as he did.

Accordingly, the order is affirmed.

CROSS, C.J., concurs.

McCAIN, J., dissents, with opinion.

McCAIN, Judge (dissenting):

I must respectfully dissent.

This interlocutory appeal summons us once again to the Herculean task of cleaning an Augean stable smothered in the debris of a post-decretal child custody hearing. The appellant-mother questions the trial court's order on custody of two minor children. In this instance I would reverse.

The final decree of divorce was entered March 21, 1967, granting a divorce to the appellee-father, incorporating by reference an agreement between the parties dated February 17, 1967, which reads in pertinent part as follows:

'6. It is further agreed between the parties that the Custody of the two minor children, John M. Potter, II, and Jennifer Jay Potter, Shall be joint with the parties, the Husband having the responsibility and custody during the week and the Wife shall have custody from Friday at 5:00 o'clock P.M. until Sunday at 7:00 o'clock P.M. each week. That during the summer school vacation months the Wife will have the custody of the children and the Husband may have reasonable visitation rights at reasonable time and places. That during the school year the Husband will not be responsible or pay any maintenance and support for the minor children; however, during the summer school vacation months the Husband will pay to the Wife the sum of ONE HUNDRED ($100.00) DOLARS per month as maintenance and support of the minor children. That the Wife and Husband shall alternative visitation rights for certain holidays such as Christmas, Thanksgiving, Easter and birthdays, whatever convenient to the children's schedules. That it is agreed that the children shall reside with their respective parents in Palm Beach or Hendry Counties and nowhere else except by mutual agreement between the parties and/or order of the Court.' (Emphasis supplied.)

Upon entry of the original decree, the two children were ages six and eight, the mother was working and living in a rented house in Palm Beach County. The father was living in Clewiston, Florida. Axiomatically, the children were shuttled back and forth across highway 80.

Subsequently, the father married and in addition to a wife, acquired a stepchild. In turn, they have had a child of their own and continue to live in Clewiston. The mother likewise remarried, gave birth to a child and now also lives in Clewiston in a three bedroom, air-conditioned home with pool, patio and maid.

On July 5, 1968, the mother filed a petition seeking modification of the custody provision. The father cross petitioned. After hearing thereon, the trial court on August 1, 1968, modified the final decree by ordering:

'It is thereupon ORDERED and ADJUDGED:

1. That the father shall have the custody of the two minor children during the school year from one week prior to the commencement of the school term until one week after the termination thereof, with the exception that the mother shall have the children with her the second weekend of every month during the school term, from Friday at 5:00 p.m., until Sunday at 6:00 p.m. The transportation of the children shall be the responsibility of the father.

2. The mother shall have the custody of the two children during the summer, commencing one week after the close of the school term, until one week prior to the commencement of the next term, with the exception that the father shall have the children with him the second weekend of every month (during the summer) from 5:00 p.m., Friday until 6:00 p.m., Sunday, and the last two weeks in July so that he may have a vacation period with them. The transportation of the children shall be the responsibility of the father.

3. The parents shall alternate the Christmas and Easter vacations, one parent having the children for the Christmas vacation and the other for the Easter vacation, commencing with the mother having the children for the Christmas vacation 1968.

4. During the summer when the mother has the custody of the children the father shall pay her $100.00 per month child support, without deduction for the time when the children are with the father during the summer.

5. The plaintiff is directed to pay the delinquency of $100.00 child support and to make the appropriate change in the existing life insurance policy to comply with the agreement between the parties incorporated in the Final Decree of divorce, all within thirty days from date hereof.

6. The provisions of paragraph 2 shall not apply during the current summer since it is nearly over. However, the father shall have the children with him during the weekend of August 16, 17 and 18, 1968 from 5:00 p.m., on Friday, August 16, 1968 until 6:00 p.m., on Sunday, August 18, 1968.

7. Each parent shall have reasonable visitation rights with the children during the time the other parent has custody of them.

8. This proceeding was primarily concerned with the custody change, and only incidentally with the delinquent child support and insurance policy modification. The defense against the plaintiff's counter petition for modification required little or no additional effort than was required to prosecute the defendant's petition for modification. However, as to the enforcement of the delinquencies, the defendant is entitled to a reasonable attorney's fee which the Court assesses in the amount of $200.00. Said sum shall be paid by the plaintiff within sixty days from date hereof.'

Significantly, the modification order found in part:

'The parties agree, as does the Court, that the frequency of the change from one household to the other is detrimental to the children and should be reduced. However, the parties designed the general custody pattern * * * the children's welfare would be well served in either home. The Court finds there has been no substantial change in circumstances which would authorize the Court in changing the general pattern of custody. Such a change as is shown by the defendant has been held insufficient. Ritsi v. Ritsi, (Fla.App.) 160 So.2d 159.'

Obviously, by reducing the number of weekends of the mother's custody, the court was attempting to follow the language of Ritsi stating that the remedy for what May have amounted to 'divided custody' (emphasis added) was reduction of visitation rights rather than a change in custody. However, Ritsi did not involve divided custody since the original decree awarded the father 'complete custody, care and control', with liberal visitation rights to the mother. Thus, that change amounted to nothing more than a reduction of visitation rights.

Sub judice, the final decree incorporated the agreement of the parties which specified 'that the Custody of the two minor children * * * Shall be joint with the parties' (emphasis added) with responsibility and custody divided on a split of 5 to 2 days out of each week. Since the lower court found there was 'no substantial change in circumstances,' yet modified the joint custody of the parents, in the manner described, we are squarely faced with the rule that a court cannot give custody to one parent where there has been a joint custody award, without finding a change in circumstances. This was prescribed in Sayward v. Sayward, Fla.1949, 43 So.2d 865, involving a joint custody decree, where it was stated:

'* * * A decree fixing the custody of minor children, whether based on a stipulation between the parties or entered on evidence adduced by the parties at an adversary hearing on the issues of custody, constitutes a final decree of the court on conditions then existing. Such a decree may not be substantially amended or changed thereafter, except upon a showing of materially altered conditions arising...