Modacsi v. Taylor, A-185

• Decision Date: 05 August 1958
• Docket Number: No. A-185,A-185
• Citation: Modacsi v. Taylor, 104 So.2d 664 (Fla. App. 1958)
• Parties: Frank MODACSI and Marie Modacsi, his wife, Appellants, v. French TAYLOR and Stella Taylor, Appellees.
• Court: Florida District Court of Appeals

Page 664

104 So.2d 664

Frank MODACSI and Marie Modacsi, his wife, Appellants, v. French TAYLOR and Stella Taylor, Appellees.

No. A-185.

District Court of Appeal of Florida, First District.

Aug. 5, 1958.

Parkinson & Sessions, Daytona Beach, for appellants.

French C. Davis, Daytona Beach, for appellees.

WIGGINTON, Judge.

This is an appeal by the natural mother and adoptive father from a final order of the Circuit Court in and for Volusia County awarding custody of their ten year old son to the maternal grandparents.

It appears from the record that the child was born in the State of West Virginia to Marie Taylor, now Marie Modacsi, one of the appellants. He was subsequently placed in the home of his maternal grandparents, the appellees here, where he remained until the occurrence of events hereinafter recounted. In July 1955, Marie Taylor and the appellant Frank Modacsi were married. Thereafter, some difficulty apparently arose between the mother and the grandparents regarding the former's right to visit or assume custody of the child as and when she desired. This dispute led to a custody proceeding, instituted by the mother in the Circuit Court of Wayne County, West Virginia, which resulted in primary custody being awarded to the grandparents, French and Stella Taylor. The mother was granted visitation privileges and custody of her son on weekends during the school year and for a period of four weeks during the summer vacation. Frank Modacsi was not a party to the above proceedings, the final order in which was entered November 28, 1956.

In August 1957, the child was delivered to its mother in accordance with the custody order mentioned above. Upon taking custody of the child, the mother, together with her husband, moved to Volusia County, Florida, where the latter accepted employment and established a home for his wife and stepson. Shortly thereafter Frank Modacsi petitioned the Circuit Court of Volusia County for a decree of adoption and permanent custody of the minor. The Florida State Welfare Board was made a party to this proceeding. After hearing testimony and considering the evidence, the court entered its final decree of adoption finding the child to be a fit and proper subject for adoption by the petitioner; that the natural mother had duly consented; that the petitioner was a suitable person to adopt the child; and that the best interest of the child would be promoted by the adoption. Based on these findings the court by decree dated September 6, 1957, granted the petition, decreed permanent custody to the petitioner and his wife, and ordered that the child be given the name and be the legal child and lawful heir of the adoptive parent.

When the child was not returned at the end of the vacation in accordance with the West Virginia custody order the grandparents made inquiry, and upon learning that he had been brought to this State, instituted the habeas corpus proceedings out of which this appeal arose. It is to be noted that this proceeding was brought in the same court which had previously entered the decree of adoption, but before a different judge. Testimony was adduced on the appellees' petition and the appellants' return thereto. The West Virginia custody order was introduced on behalf of the petitioning grandparents. They testified that their condition had remained unchanged since the entry of the order by which they were awarded custody of the child; that they continued able and willing to assume all obligations imposed by the said order; that they loved the child and wanted him delivered over to them in order that he could return with them to their home; and that the respondents had exhibited bad faith in removing the child from the jurisdiction of the West Virginia court. The final decree of adoption and permanent custody entered by the Volusia County Circuit Court was introduced by the respondents. In addition, they offered several witnesses whose testimony reveals that the parents maintain a suitable home for themselves and their son and are able to provide care, comfort, education and the necessities of life in ample measure; that the child is progressing satisfactorily in school and is properly adjusted to his new surroundings. The child testified that he loved his mother and adoptive father and wished to remain with them, rather than return to live with his grandparents in West Virginia. Upon consideration of the foregoing the trial court ordered the child returned to the custody of the petitioners. This apparently without proper regard to the legal effect of the adoption decree by which custody and control of the child was awarded to the appellant, Frank Modacsi.

By its judgment entered November 28, 1956, the West Virginia court determined the custodial rights of the parties to that proceeding as of that date. Our examination of that judgment has revealed no prohibition against a removal of the child from West Virginia by either of the parties thereto. The alleged bad faith on the part of appellants is, therefore, in no way determinative of this cause.

Chapter 72, Fla.Stats., F.S.A., sets forth...