Pape v. Pape

• Decision Date: 24 January 1984
• Docket Number: No. AP-402,AP-402
• Citation: Pape v. Pape, 444 So.2d 1058 (Fla. App. 1984)
• Parties: Harold R. PAPE, II, Appellant, v. Janet M. PAPE, now Janet M. Lockwood, Appellee.
• Court: Florida District Court of Appeals

Page 1058

444 So.2d 1058

Harold R. PAPE, II, Appellant, v.Janet M. PAPE, now Janet M. Lockwood, Appellee.

No. AP-402.

District Court of Appeal of Florida First District.

Jan. 24, 1984.

Rehearing Denied March 1, 1984.

G. Frank Godfrey of Wood, Godfrey, Carlin & Atter, Jacksonville, for appellant.

Daniel O. Palmer, Orange Park, for appellee.

Before ERVIN, C.J., and MILLS, BOOTH, SMITH, SHIVERS, WENTWORTH, JOANOS, THOMPSON, WIGGINTON, NIMMONS and ZEHMER, JJ.

EN BANC OPINION

JOANOS, Judge.

Harold R. Pape(Rick) appeals a modification of his and Janet Pape's (Janet) final judgment of dissolution granting custody of his minor child (Belinda), now nine years old, to Randall Lockwood(Randall), Janet's husband, Belinda's stepfather.

Rick's and Janet's marriage was dissolved in January, 1977, with Janet awarded custody of Belinda, then three years of age, and Rick ordered to pay child support.In July, 1979, Janet and Randall were married and Belinda resided with them in Jacksonville, Florida.Janet was killed in an automobile accident in October, 1981.Belinda has resided in Randall's home since Janet's death, along with another minor child born to Janet and Randall in April, 1980.Randall's present wife, whom he married in May, 1982, also now resides in the home.After Janet's death, Rick, then married and living in California, petitioned for modification of the final decree to gain custody of Belinda as her natural father.Following Randall's petition for an investigation and social study, the trial court ordered such an investigation to be conducted by the Department of Health and Rehabilitative Services(HRS).HRS filed a report citing the loving relationship and excellent care provided in Randall's home and the suitable home and stable environment that Rick, his present wife and three children (her two sons by a previous marriage and one daughter of Rick's and hers) could provide in California.HRS concluded that custody of Belinda should be returned to her legal and biological father, Rick.After a hearing, which was neither recorded nor reduced to a statement of evidence, the trial court denied Rick's petition for custody, awarded custody to Randall and ordered Rick to pay child support, citing that it would not be in Belinda's best interest to place custody with her natural father.

As pointed out in the recent opinion of In Re The Guardianship of D.A. McW., 429 So.2d 699(Fla. 4th DCA1983), in the usual custody case between two parents, where both are fit and have equal rights to custody, the "best interest of the child" test controls, but in a contest between a parent and someone else, natural parental rights, as well as the child's welfare, must be considered.Citing, State ex rel. Sparks v. Reeves, 97 So.2d 18(Fla.1957), the Fourth District Court of Appeal found that a "parent's natural right to custody must give way only when the child's welfare requires it or the parent is in some way disabled."D.A. McW., at 702.See also, Johnson v. Johnson, 434 So.2d 972(Fla. 5th DCA1983).

The Supreme Court of the United States has stated that its decisions "... have by now made plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection' "Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640(1981)quotingStanley v. Illinois, 405 U.S. 645, at 651, 92 S.Ct. 1208, at 1212, 31 L.Ed.2d 551(1972).

Generally, in the absence of a finding of abandonment, or that the natural parents are unfit, strangers, even grandparents, may not be awarded permanent custody of children, where the natural parents have not relinquished their rights.Besade v. Besade, 312 So.2d 484(Fla. 3rd DCA1975).Although the circumstances of particular cases such as in Gorman v. Gorman, 400 So.2d 75(Fla. 5th DCA1981), andScott v. Singleton378 So.2d 885(Fla. 1st DCA1979), may well justify an award of custody to a non-parent, the mere fact of temporary physical possession by a stepparent does not in itself furnish grounds for permanent deprivation of parental custody.See, In Interest of H., 320 So.2d 868(Fla. 4th DCA1975);State ex rel Sparks v. Reeves, 97 So.2d 18(Fla.1957);andWray v. Williams, 352 So.2d 152(Fla. 2nd DCA1977).Parents have a natural and a legal right to the custody of their children, and, other things being equal, the court should award custody to a natural parent rather than one who is not a parent.25 Fla.Jr.2d, Family Law, § 525.Award of custody to the father, where the mother had died, although the child was closer to its maternal grandparents--through circumstances mostly not of the father's making--was held not error in Wise v. Brewster, 179 So.2d 882(Fla. 1st DCA1965).This court has held that in the absence of evidence disclosing that the best interests of children warranted the "drastic remedy" of depriving their natural father of the right to rear his children in his home, the trial court erred in awarding custody of minor children, whose mother had died, to their maternal grandmother.Behn v. Timmons, 345 So.2d 388(Fla. 1st DCA1977).Given a parent's natural right to custody, fellowship and companionship of his offspring, Rick should not have been denied custody of his daughter, absent a determination that he is unfit or unqualified to have custody or that the welfare of the child requires denial of the father's claim on that basis and provision for another custody arrangement.

We note apparent conflict in our decision with our prior opinion in Scott v. Singleton, 378 So.2d 885(Fla. 1st DCA1979) and for that reason have considered this case pursuant to the en banc provisions of Florida Rule of Appellate Procedure 9.331.We distinguish Scott on the facts of the two cases.Scott involved the granting of the minor children's custody to the maternal grandmother who had raised the children for the most part over five years in her home.Here, there is no blood relation and Belinda had lived with her stepfather for three years when Janet met her untimely death.To the extent that the rationale of Scott may conflict with this opinion, we recede from Scott.

We note our awareness of appellee's position that without a trial transcript or proper substitute we cannot resolve the underlying factual issues in this case"... so as to conclude that the trial court's judgment is not supported by the evidence or by an alternate theory."Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152(Fla.1979).That is a principle of law with which we are familiar and which controls the appellate process.SeeStarks v. Starks, 423 So.2d 452(Fla. 1st DCA1982).However, the error that occurred in the proceeding below was not in the factual context of the case but in the "... misconception by the trial judge of a controlling principle of law ...."Applegate, supra, at 1152.Thus, it is within our scope of authority to review the matter and finding error send it back to the trial court for the application of the correct principle of law.

Accordingly, the trial court's grant of custody to Randall is REVERSED and this cause is REMANDED for the entry of a new order after the trial court's consideration of the evidence in light of the rule announced in this opinion.

BOOTH, SMITH, WENTWORTH, THOMPSON, WIGGINTON, NIMMONS and ZEHMER, JJ., concur.

SHIVERS, J., dissents in separate opinion and ERVIN, C.J., concurs in SHIVERS dissent.

MILLS, J., dissents in separate opinion.

SHIVERS, Judge, dissenting.

I respectfully dissent.

After the hearing, the trial court in its modification order rested its decision on both the evidence and the HRS report in determining that it would not be in the best interest of the minor child to place her in the custody of her father at this time:

... and the court having considered the evidence, together with the report of the Department of Health and Rehabilitative Services ....

The trial court further found that the child is receiving very good care in the home of her stepfather and is responding positively to the love and attention provided her.

This court was furnished no transcript of the hearing.We do not have the benefit of knowing what evidence the trial court considered in making its decision.

In Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150(Fla.1979), the appellate court was furnished no transcript.The Supreme Court, speaking through Justice Adkins, clearly...