Kersey v. State

• Decision Date: 01 December 1960
• Docket Number: No. C-112,C-112
• Citation: Kersey v. State, 124 So.2d 726 (Fla. App. 1960)
• Parties: In the Interest of Richard Samuel KERSEY, Wanda Sue Kersey, and Katherine Elaine Kersey, Minor Children of Roger Sylvester Kersey and Mildred V. Kersey, his wife, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 726

124 So.2d 726

In the Interest of Richard Samuel KERSEY, Wanda Sue Kersey, and Katherine Elaine Kersey, MinorChildren of Roger Sylvester Kersey and Mildred V. Kersey, his wife, Appellants, v.STATE of Florida, Appellee.

No. C-112.

District Court of Appeal of Florida, First District.

Dec. 1, 1960.

Earl Brown and S. Perry Penland, Jacksonville, for appellants.

William A. Hallowes, 3rd, State Atty., Nathan, Schevitz, Asst. State Atty., and Lamar Winegeart, Jr., Jacksonville, for appellee.

MASON, Associate Judge.

This is an appeal from an order of the Juvenile Court of Duval County denying the petition of appellants, as natural parents of three minor children, for a return to them of the custody, care and control of the children, of whose custody they had been deprived by a previous order of such Court.The facts as briefly as they may be stated are as follows:

On December 30, 1957, the Juvenile Court of Duval County, after hearing, adjudged appellants to be unfit parents, their five (5) minor children dependent under the law of Florida, and placed the children in a boarding home in Jacksonville, directing the father to pay their board.The record amply supports this first order of the Court.January 6, 1959, upon petition filed alleging that the parents of the children were reconciled and living together in Lexington, North Carolina, that the father was earning One Hundred Thirty-one Dollars and Sixty Cents ($131.60) per week, and that the parents had a comfortable home, well furnished, etc., with good environment for the children, the Juvenile Court determined that the children were still dependent, but ordered that the two older children, age Twelve (12) and Ten (10) years respectively, be committed to their parents, appellants herein, to reside with them in North Carolina, but refused to change the custody of the three younger children, subjects of this appeal.The Court in making this determination of the petition apparently based its decision upon the allegation 'that the two oldest children * * * have great attachment for their parents and are extremely unhappy; that, for that reason, and that reason alone, it would appear that said children should be committed to said parents.'In November, 1956 the parents again applied to the Court for the return to them of the three remaining children, a hearing was held on December 4, 1959, upon their petition, and the Court determined that the best interest of these three children demanded that the care, costody and control 'remain for the present' with the present custodians.In the meantime the two younger girls, Wanda Sue and Katherine Elaine, had been placed in the care of one Mr. Youmans and wife in Duval County in April, 1958, and at the time of the hearing in December, 1959, the Youmans were applying to the Circuit Court for adoption of these two little girls.The young boy, Richard, had been, in February, 1958, placed in the custody of a Mr. and Mrs. James W. McCain, who lived in Jacksonville, Florida.The McCains had not sought to adopt this child by the time of the December, 1959, hearing.The order was entered December 28, 1959.An appeal therefrom was dismissed April 7, 1960, because it was not timely filed.On April 11, 1960, appellants again petitioned the Court for a return of the three younger children and again the petition was denied.In this petition appellants alleged that they had resumed marital relationship September 1, 1958, and moved to Lexington, N. C., and claimed to have lived sober and proper lives ever since, that the father had steady employment with the same employer from which he earned adequate income to support his wife and five children, since September 1, 1958, and that they had a good and proper home in which to rear all their children.The Juvenile Court again denied their petition for the return of the three younger children, on May 5, 1960, on the ground that no material change of circumstances from those disclosed at the December, 1959, hearing had been disclosed, and that the Court was still of the opinion that the actual welfare of the children is the governing factor in such cases.It is from this order that the present appeal emanates.

Appellants raise the question of abuse of discretion by the Juvenile Court in refusing to return custody and control of the three younger children to them.

Our examination of the record disclosed that there was omitted from it when transmitted to this Court, perhaps by oversight of the parties, the petition of December 29, 1958, and the lower court's order thereupon, dated, January 6, 1959, by which the Court returned custody of the two older children to appellants, but refused to do so as to the other three, subjects of this appeal.Believing that this petition and order are necessary to be considered by us with other portions of the record for proper disposition of this appeal we have, under Rule 3.6, subd. l, 31 F.S.A., directed that these documents be transmitted to this Court, and we have made them a part of the record on appeal.

At the outset we are confronted with the effect of the order of this Court on April 7, 1960, dismissing the appeal from the Juvenile Court's order of December 28, 1959, which denied the petition of appellants for a return of custody to them of the three children, subjects of the present appeal.The first appeal was dismissed because not timely filed.Appellee contends that the dismissal of April 7, 1960, operated as an affirmance of the judgment or oder appealed from, and, since the trial court announced at the hearing held on the petition filed April 11, 1960, that the parties had stipulated that the testimony taken at the hearing upon which the order of December 28, 1959, was predicated 'shall become a part of the proceedings in the Court today and that the facts today are substantially the same as they were on December 4, 1959', was res adjudicata as to all matters litigated therein and as to the facts relating to custody prior to the time of said order.Appellee then argues that the only basis upon which the lower court would have been authorized to change custody after December, 1959, would be upon a showing of change of circumstances since that time.We can dispose of this problem, without passing upon the question as to whether the dismissal by this Court of April 7th is an affirmance of the order of December 28, 1959, by concluding, as we do, that the record before us is not limited to the facts and circumstances before the trial judge when he ruled on December 28, 1959.In the first place the trial judge did not determine his order of May 5, 1960, (the order from which this appeal is taken), solely upon the record as it was as of December, 1959, for at the April, 1960, hearing he announced only that the facts then were 'substantially the same as they were on December 4, 1959', and he proceeded to take additional testimony to decide whether he would make any change in custody as of then.At the April, 1960, hearing it developed that since the last hearing the appellant parents were containing to live harmoniously together, that they were purchasing and about to move into a more commodious home for the family, that the two older children whose custody they had since January, 1959, were happily situated with their parents and the parents continued to enjoy a good reputation in the community in North Carolina where they had lived since September, 1958.Furthermore, we do not believe that when the contest is between the right of natural parents to have their children and that of strangers to have their custody, even in a situation where the State is the real party in interest, the same strict rule as to the necessity of a change in circumstances should apply as is applicable under our decisions where the contest is between the natural parents, and one of them seeks to modify an order of the chancery court which has given custody to the other parent.This seems to have been the view of our Supreme Court expressed in State ex rel. Sparks v. Reeves, Fla., ...