McAnespie v. McAnespie

• Decision Date: 21 June 1967
• Docket Number: No. 7491,7491
• Citation: 200 So.2d 606
• Parties: Mae Catherine McANESPIE, Appellant, v. Robert Kelly McANESPIE, Appellee.
• Court: Florida District Court of Appeals

Page 606

200 So.2d 606

Mae Catherine McANESPIE, Appellant, v. Robert Kelly McANESPIE, Appellee.

No. 7491.

District Court of Appeal of Florida, Second District.

June 21, 1967.

John S. Matthews, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

William W. White, Jr., of Thompson & White, Tampa, for appellee.

PIERCE, Judge.

This appeal is from a final decree entered by the Circuit Court for Hillsborough County in a divorce case, wherein the Chancellor, contrary to the findings and recommendations of the Special Master, awarded permanent custody of wo small minor children to the father.

Appellee husband filed complaint for divorce against appellant wife on the grounds of adultery and extreme cruelty and also sought custody of the two minor children of the parties, Nancy Ann, aged 8 years, and Terry Robert, aged 6 years, upon allegations that the wife was an unfit person to have their custody. The wife by answer denied such charges, and by counterclaim asked for divorce on the grounds of extreme cruelty and adultery, which latter allegations were denied by the husband.

Threafter, over four hundred pages of sworn testimony was taken personally before the Special Master mutually chosen by the parties, consuming some three days, together with two hundred and thirty-two pages of testimony taken by depositions from five witnesses, four of whom, however, were among those testifying personally before the Master.

Thereafter, the Special Master, in an exhaustive Report to the Court, comprising eighteen pages, analyzed in great detail the testimony, pro and con, of and for the parties, upon all the issues in the case. The findings were: (1) that the wife was guilty of adultery and extreme cruelty toward the husband; (2) that the evidence of extreme cruelty of the husband, while not denied by him, was not corroborated by other evidence, and therefore was not sufficient to establish the wife's counterclaim; and (3) that the defendant had been 'a good mother' and the welfare of the children 'would be best served by granting their custody' to her. Conclusions of law and recommendations to the Court in accordance with such findings were included in the Master's report.

The plaintiff husband filed his 'Opposition to the Report and Findings of Special Master Regarding Custody', taking issue with the findings and recommendations of the Special Master in such regard. Upon final hearing, the Chancellor entered his Final Decree, approving the recommendations of the Master in all particulars except that of custody of the children, as to which the 'Opposition to the Report' was 'sustained'. The Decree thereupon granted plaintiff husband both a divorce and permanent custody of the minor children.

Defendant wife has appealed said Final Decree to this Court, assigning as error and arguing here only the issue of custody of the minor children. It is contended that the Chancellor erroneously substituted his own findings as to the fitness of the mother and the correlating welfare of the children for those of the Special Master. This brings into direct focus the always vexatious question as to the line of demarcation between, on the one hand, the weight to be accorded the findings of a Special Master upon adversary sworn testimony of witnesses taken personally before him, and, on the other hand, the authority of the Chancellor to in effect reverse such findings upon the sole basis of the cold printed pages of the record.

The guidelines for review by a Chancellor of the findings made by a mutually-chosen Special Master have been substantially laid down by the appellate Courts of Florida in numerous cases.

Such findings are to be accorded the same weight as the verdict of a jury in a common-law action. Croom v. Ocala Plumbing & Electric Company, 1911, 62 Fla. 460, 57 So. 243; Kent v. Knowles, 1931 101 Fla. 1375, 133 So. 315; McAdow v. Smith, 1937, 127 Fla. 29, 172 So. 448; Florida Nat. Bank & Trust Co. of Miami v. Brown, Fla.1950, 47 So.2d 748; Dade County v. Trombly, Fla.App.1958, 102 So.2d 394. A Master's findings should not be disregarded 'unless clearly wrong'. Parker v. Interstate Trust & Banking Co., CCA Fla.1932, 56 F.2d 792; Spencer v. Young, Fla.1953, 63 So.2d 334; Moncrief v. Hall, Fla.1953, 63 So.2d 640; Slatcoff v. Dezen, Fla.1954, 74 So.2d 59; Ozgowicz v. Leighton, Fla.App.1963, 151 So.2d 21; Applefield v. Commercial Standard Ins. Co., Fla.App.1965, 176 So.2d 366; Gulf Coast Docks, Inc. v. Simon, Fla.App.1960, 122 So.2d 414. When 'the parties consent to the reference of a case to a master * * * to hear and decide all the issues therein' the Supreme Court has declared it to be 'a submission of the controversy to a special tribunal, selected by the parties, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law'. Croom v. Ocala Plumbing & Electric Company, supra.

The foregoing rules have been held to be fully applicable to a divorce case, where the State in effect is always a party. Harmon v. Harmon, Fla.1949, 40 So.2d 209; Lyon v. Lyon, Fla.1951, 54 So.2d 679; Bergh v. Bergh, Fla.App.1961, 127 So.2d 481; Petersen v. Petersen, Fla.App.1964, 166 So.2d 631; Frank v. Frank, Fla.1954, 75 So.2d 282.

In Harmon, the Supreme Court held as follows:

'While it cannot be questioned that in a case where the chancellor has appointed a master and empowered him to make findings he may override or modify them in any manner consistent with the justice of the case, he may not do this except for good cause. We interpret 'good cause' to mean a showing that the findings of fact by the master were Clearly erroneous.

'From our study of the subject it seems to us logical, if the master has heard all the testimony, that an exceptant to his findings undertakes the burden of showing that the master has clearly made a mistake--In other words, the same burden as an appellant who callenges in this court the conclusions of fact reached by a chancellor who has heard the witnesses.

'In fine, we have the view that where, as in this case, a competent master is selected by the chancellor and attentively conducts the hearings, thoroughly digests the testimony of the witnesses, and arrives at conclusions which are logical and well supported, his findings, although advisory, should not be set aside arbitrarily or capriciously (of which there is no claim in this case) nor should they be disregarded or overruled by the chancellor simply because of an opinion of the chancellor at variance with that of the master. As we have said, the master was acting as an accredited agent of the chancellor and was at the time performing a service which would have been performed by the chancellor himself but for the appointment. Having seen and heard the witnesses, he had a definite advantage over the chancellor, who reviewed the case from a typewritten record.' (Emphasis supplied)

In Petersen, this Court held the case to be controlled by Harmon, and in doing so construed the Supreme Court's holding in Harmon as follows:

'In Harmon v. Harmon, Fla.1959, 40 So.2d 209, our Supreme Court held that presumptions favoring correctness of rulings of chancellor based largely or solely on questions of fact did not apply where all the testimony was actually heard by the master selected by the chancellor and none of its was heard by the chancellor; that reports of master to whom matters are submitted by agreements of the party have the weight of the verdict of the jury; and that where the chancellor has appointed a master and empowered him to make findings on testimony, he may override or modify them in any manner consistent with justice, but he may not do so except for a 'good cause,' which means a showing that the findings of fact by the master are clearly erroneous.'

In the case sub judice the Chancellor was apparently beset very strongly with the feeling that the wife, because of her adulterous behavior and conduct, in and of itself, was not a fit and proper person to have the custody of her children. But, as a matter of law, such conclusion does not necessarily follow such premise.

The general rule is stated in Am.Jur., Vol. 17--A, Sec. 820, Divorce and Separation, as follows:

'The fact that a mother is guilty of adultery does not necessarily disqualify her to have the custody of her children. Although she may have been a bad wife, she may be a good mother. The moral unfitness of a mother must be such as has a direct bearing on the welfare of the child, if it is to deprive her of the custody of the child.

'Although it is said in some other cases, that, other considerations being equal, it is usual to award the custody of the children to the innocent spouse, a survey of the results of a large number of cases reveals that this is not the practice in the majority of the states. Even though a father obtains a divorce, the preference of the mother as the custodian of a child of tender years persists where her fault does not reflect upon her present fitness to raise the child. Notwithstanding the conduct of the mother, the welfare of the child may be best served by awarding it to her; and this welfare can be determined to some extent by the comparative acts of the father and mother, showing love and affection for it and a parental interest in its welfare.'

The Courts of this State seem to follow the foregoing rule. The Supreme Court, speaking through the beloved Justice Terrell, in Widett v. Widett, Fla.1956, 88 So.2d 769, affirmed a final decree which granted the husband a divorce because of the wife's adultery and extreme cruelty but awarded her custody of their six year old daughter. The Chancellor in that case made findings in his decree, which findings were quoted in full, and upheld, by the Supreme Court, as follows:

'The proof is clear that she committed...