Randolph v. Randolph
| Decision Date | 25 March 1941 |
| Citation | 146 Fla. 491,1 So.2d 480 |
| Parties | RANDOLPH v. RANDOLPH. |
| Court | Florida Supreme Court |
Rehearing Denied April 25, 1941.
Appeal from Circuit Court, Dade County; Paul D. Barns Judge.
Abraham J Kaplan and William J. Pruitt, both of Miami, for appellant.
David B Newsom, of Miami, for appellee.
The appellee filed his bill for divorce predicated on extreme cruelty and frequent indulgence in a violent and ungovernable temper. He prayed for the custody of two minor children, aged five and two. Appellee answered the bill of complaint where she denied all its material allegations and charged appellee with cruelty and habitual indulgence in a violent and ungovernable temper. She prayed for the custody of the two minor children alimony, suit money, and attorneys' fees.
On final hearing the Chancellor found that both parties proved their case and entered a decree divorcing each from the other. Like Solomon when called on to adjudicate the claim of the two harlots to the child (I Kings 3), he divided the children equally awarding the older to the father and the younger to the mother, with liberal provision for visitation both ways. He also awarded appellant attorneys' fees and ten dollars per week for support of the younger child, but no award of alimony was made. We are confronted with an appeal and a cross appeal to review this judgment.
Sixteen questions are posed but they are directed primarily to that part of the final decree affecting the custody of the two minor children and neglect or refusal to award alimony. Both parties contend that they should have been given the custody of both children and appellant contends that she should have been awarded alimony and a larger sum for support of the children.
The question of alimony in a case like this is controlled by Section 4987, Compiled General Laws of 1927, as follows:
'Alimony upon decree of divorce.--In every decree of divorce in a suit by the wife, the court shall make such orders touching the maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given for the same, as from the circumstances of the parties and nature of the case may be fit, equitable and just; but no alimony shall be granted to an adulterous wife.'
The Chancellor made no allowance for alimony but did award appellant ten dollars per week as support for the younger child. Appellee contends that a proper interpretation of the Statute so quoted bars any offending spouse from alimony if she was the actuating cause of the divorce, and that since he was granted a divorce for defendant's cruelty, she is not entitled to alimony. He relies on Phinney v. Phinney, 77 Fla. 850, 82 So. 357, to support this contention.
We do not so interpret the statute and the last cited case when read in the light of the statute does not warrant that interpretation. The only class barred absolutely from alimony is the adulterous wife. In all other cases, the Chancellor may award such amounts for alimony as in the 'circumstances of the parties and nature of the case may be fit, equitable and just'. Aside from adultery, the circumstances and conduct of an offending spouse might be such as to bar her from alimony but this is a matter solely in the discretion of the Chancellor governed by equity and justice and the condition of both parties. All these factors the Chancellor should consider and adjudicate the claim for alimony accordingly.
In the matter of guardianship and custody of the two children, it appears that both parties attempted to smut each other's character and show unfitness on this point, but the Chancellor found that the father and mother were both fit subjects to rear them and awarded the older child to the father and the younger to the mother. The mother contends that since she was found to be a fit guardian for one child, she should have been given the custody of both. The father counters with a like contention and with the further contention that the father has a paramount right to the custody of minor children. He relies on Hopkins v. Hopkins, 84 Fla. 500, 94 So. 157, to support this contention.
It is quite true that under the ancient common law, the father was said to have a superior right of guardianship over minor children but the refinements of Christian ethics early revealed the fallacy of this theory and commenced to modify it as the best interest of child required. In right and justice, there was never any merit to the doctrine. It was the relic of an era in which woman was regarded as little more than a bedfellow or a sex chattel and was implemented into the law on the sole ground that the father furnished food and raiment. We do not for one moment discount the importance of food; it is the very foundation of all personal values, but it takes much more than food to prepare one for citizenship in a democracy like ours. We may be well fed, yet totally devoid of social responsibility, a passion for justice, and completely unaware of the injustices and inequalities that exist under our very noses so long as they don't affect us personally.
The law of this State, Section 5884, Compiled General Laws of 1927, makes the father and mother joint guardians of the minor children. This is in harmony with the story of creation as recorded in the first chapter of Genesis where we are told that male and female were created equal and commanded to inhabit and subdue the earth. The law of this State, Section 4993, Compiled General Laws of 1927, also provides that in any suit for divorce, the Court may make such orders touching the care, custody, and support of the minor children as their 'spiritual as well as other interests may require'.
So the ultimate test of guardianship in this State is the spiritual and moral well being of the child. With these factors in mind, the Chancellor may award it to the father, the mother, or a stranger to the blood as the circumstances require or he may do as he did in this case, make an award to both parents. The idea that the father has a right superior to the mother is a dogma long since...
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