McCown v. McCown, 4873
| Decision Date | 27 May 1964 |
| Docket Number | No. 4873,4873 |
| Citation | 167 So.2d 250 |
| Parties | William R. McCOWN, Appellant, v. Doris McCOWN, Appellee. |
| Court | Florida District Court of Appeals |
Robert H. Carlton, of Carlton & McCown, Tampa, for appellant.
No appearance for appellee.
The father, William R. McCown, who presently has custody of the parties' six year old daughter, Debra, appeals a post decretal order enlarging the visitation rights of the mother.
By terms of the final decree in divorce, entered July 17, 1961, as amended and modified August 24, 1961, the appellant was awarded custody of the parties' daughter, Debra, as well as custody of the mother's natural daughter, Christine, age fourteen, whom he previously had adopted. Thereafter, the children lived with the father and were cared for by his mother, who is seventy-three years old.
In January 1961, the appellee secured employment as a waitress in a cocktail lounge. In January 1962, she married a staff sergeant in the armed forces.
In early 1962, the appellee was visiting with Christine and Debra almost every day. Christine, who is fourteen years old, indicated that she wanted to live with her mother. Further, certain difficulties arose in connection with the mother's visits. Consequently, on April 4, 1962, the parties executed a stipulation and agreement in which they agreed, among other things, that Christine should live with her mother in the future; that the mother's visitation rights with Debra should be limited to a period from 5:00 P.M. on a Sunday evening until 8:00 A.M. the next morning, once each month; and that the mother should have the right to obtain a court order approving the agreement without further notice to the father. The stipulation and agreement was approved by an order entered June 19, 1962, upon application by the mother.
On July 18, 1963, the mother served upon the father a petition seeking an increase in visitation privileges based upon allegations that her circumstances and those of the child had changed substantially since the order of June 1962. Specifically, the mother alleged that she had so changed her hours of employment that she now had week-ends free; that the child had expressed a strong desire to spend more time with her; that the child's age was now such that her desires should be recognized; and that increased visitation would serve the best interests of the child. The father filed a motion to dismiss and, after the court entered an order reserving its ruling thereon an answer denying the pertinent allegations of the petition and affirmatively alleging certain facts which, if true, tended to show that Debra's best interests would be served by denying the mother's petition.
At the hearing held on December 11, 1963, there was evidence that the existing arrangement had been dictated, among other things, by certain conditions which no longer obtained; that the arrangement had proved to be unsatisfactory in operation; and that Debra's best interests would be served by increasing both the frequency and the duration of her visits with the mother. Accordingly, the court entered an order modifying the final decree, as amended, by permitting the mother to have Debra every other week-end from 4:00 P.M. Friday until 8:00 A.M. Sunday and, in addition, to have her for a 30-day period during June, July or August of each year.
The father contends that the court below erred in failing to grant his motion to dismiss based upon the mother's alleged failure to state a claim upon which relief could be granted. An examination of the mother's petition discloses that it sets forth a statements of ultimate facts sufficient to constitute a cause of action and to inform the father of the nature of the cause against him. Consequently, the court did not err in failing to grant the father's motion to dismiss.
The father next contends that the order must be reversed because the record merely shows that the mother has encountered certain difficulty and inconvenience in carrying out the provisions of the parties' agreement and that this is insufficient to warrant modification of an agreement which has been ratified by the court. The appellant relies on Bulter v. Butler, Fla.App.1961, 132 So.2d 437. However, in the cited case the court refused to approve a modification because the record failed to disclose that the welfare of the children there involved would be advanced by the changes made. In the case before us the record affirmatively discloses that the infrequent and apparently ill-timed visitations previously agreed upon by the parties operated to the detriment of the child. Specifically, the record discloses that the appellee encountered difficulty getting...
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...150 Neb. 533, 34 N.W.2d 884; Lamb v. Lamb, 348 Mich. 557, 83 N.W.2d 323; Evans v. Evans, 195 Miss. 320, 15 So.2d 698, 699; McCown v. McCown, Fla.App., 167 So.2d 250; Bogardus v. Bogardus, 102 Cal.App. 503, 283 P. 127; Garner v. Garner, 143 Okl. 18o, 288 P. 298; Felker v. Felker (Tex.Civ.App......
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Taylor v. Taylor
...to allow their child to visit him there, the father's petition was devoid of any allegation of changed circumstances. McCown v. McCown, 167 So.2d 250 (Fla. 2d DCA 1964). Neither was there any discussion at the hearing of changed circumstances. The court and the parties seem to have assumed ......
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Giacoio v. Giacoio, 73--956
...court had the right to make such an order as would appear proper for the protection of the interests of the children. Cf. McCown v. McCown, Fla.App.1964, 167 So.2d 250. ...