Scheer v. Scheer, 60-568

• Decision Date: 31 August 1961
• Docket Number: No. 60-568,60-568
• Citation: 132 So.2d 456
• Parties: Peter F. SCHEER, Appellant, v. Ruth M. SCHEER, Appellee.
• Court: Florida District Court of Appeals

Page 456

132 So.2d 456

Peter F. SCHEER, Appellant, v. Ruth M. SCHEER, Appellee.

No. 60-568.

District Court of Appeal of Florida, Third District.

Aug. 31, 1961.

George J. Baya, Miami, for appellant.

Edward P. Swan and Truett & Watkins and Harold Heller, Miami, for appellee.

Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.

CARROLL, Judge.

This is an interlocutory appeal from a post decree order in a divorce suit. The order appealed from denied the husband's petition to gain custody, and withdrew the right of visitation.

The several assignments of error and points argued by the appellant amounted to whether the evidence supported the denial of the husband's petition for change of custody, whether the evidence justified the withdrawal of the rights of visitation, and whether the latter relief was permissible where not pleaded or requested by the wife. The denial of the husband's petition for change of custody is affirmed on the ground that appellant has not maintained his burden of showing that the ruling was clearly wrong on the evidence or an abuse of discretion. The order is reversed wherein it deprived the husband of his visitation rights, on authority of Cortina v. Cortina, Fla.1957, 98 So.2d 334. See also Kurtz v. Kurtz, 112 Fla. 619, 150 So. 785; State ex rel. Lorenz v. Lorenz, 149 Fla. 625, 6 So.2d 620.

In the final decree which granted the wife a divorce in August of 1959, she was awarded custody of the children, a daughter then aged 12 and a son 11 years old, with 'reasonable rights of visitation' granted to the husband, as per an agreement which elaborated and specified the visitation rights. ¹ Ten months later, in June of 1960, the husband petitioned for custody, charging the wife was unfit to have custody because of certain conduct subsequent to the decree, alleging his fitness, his later marriage and new home, etc. The mother of the children answered and denied the allegations directed to her fitness or conduct. Her answer does not contend that the father was unfit, but 'admits that the petitioner has been a devoted father.' By her answer the mother did not seek termination of the father's visitation rights, and her only request for affirmative relief was for attorney fees.

On the hearing the chancellor denied the husband's petition for transfer of custody of the children to him, and admended the decree to deprive the father of the children of visitation rights. That was not done because of unfitness of the husband, but because he showered too much affection and attention on the children and they responded by preferring to be with him. This was felt by the chancellor to be the result of a scheme of the father to win their favor and alienate them from the mother. ²

In Cortina v. Cortina, supra, subsequent to a divorce decree the husband brought the wife into court on a contempt rule for allegedly refusing his allowed visitation. The court went beyond the issue made on the petition and rule to show cause and amended the decree to relieve the husband of the duty to pay support. That order resulted when, during the course of the hearing on the rule to show cause, the court reached the conclusion that the denial of visitation was the fault of the daughter and the mother was not inclined to correct it. After amending the decree by relieving the husband from payment of support, it was provided that if the mother and the daughter later decided to comply with the decree as to visitation the court would amend the decree further to again provide for support money. In reversing that order, the Supreme Court held that the decree was final on matters such as custody and visitation for all facts and circumstances as of the time it was entered, and should not be amended in respects for which no amendment was sought and pleaded.

We do not wish to be understood as holding that in the event of an emergency the court cannot make such orders for temporary care, custody and for visitation as seem to be indicated, but we hold that when a parent or other person has by final decree been granted legal custody or visitation rights relating to the custody of children, the final decree should not be amended to take away such rights or any substantial change made therein except upon the usual and ordinary procedure of pleading including an allegation or statement of the basis of the claim for the change by the party seeking it and an opportunity to directly answer the same and raise issue thereon so that the parties may know that their evidence is being directed to or with reference to that issue, and in order that a record may be made for the benefit of a reviewing court if review should be sought. See Kurtz v. Kurtz, supra; Cortina v. Cortina, supra; Parrish v. Parrish, Fla.App....