Smothers v. Smothers, 42192
| Decision Date | 31 July 1973 |
| Docket Number | No. 42192,42192 |
| Citation | 281 So.2d 359 |
| Parties | Margaret Jane SMOTHERS, nee Moore, Petitioner, v. Jerry T. SMOTHERS, Respondent. |
| Court | Florida Supreme Court |
J. Russell Hornsby, Orlando, for petitioner.
Donald P. Ewald, Gierach & Ewald, Orlando, for respondent.
Our jurisdiction in this cause is dependent upon a direct conflict between the decision of the District Court of Appeal sub judice, 257 So.2d 591, and another decision of a District Court or of this Court. Article V, Section 3(b)(3), Florida Constitution, F.S.A. We issued a writ of certiorari in this cause because of an apparent conflict indicated in the record proper. See Foley v. Weaver Drugs, 177 So.2d 221 (Fla.1965). After having been briefed on the merits of the cause by the parties, however, and after considering the entire record, we find that there is no conflict. We, therefore, discharge the writ as having been improvidently granted.
The only part of the record proper accompanying the petition for writ of certiorari was the per curiam affirmance of the District Court of Appeal, Fourth District, and the dissenting opinion of Judge Mager. The facts recited in the dissenting opinion indicated that in this action for modification of child custody the trial court removed three minor children from custody of the divorced wife, and awarded custody of them to the divorced husband, solely because of adultery on the part of the mother. The apparent conflict was with Widett v. Widett, 88 So.2d 769 (Fla.1956), cited in the dissent, and with McAnespie v. McAnespie, 200 So.2d 606 (2d Fla.App.1967). The effective holding of these cases is that adultery on the part of a mother--in and of itself--will not necessarily disqualify her to have custody of her children.
We adhere to that holding. An isolated act of adultery, or even frequent ones, may have no bearing whatsoever on the welfare and upbringing of the children. If, therefore, this case involved only a sexual involvement between petitioner and the third party, Roger Moore, there would be conflict with the above-cited cases and we would reverse. This case involves more that that, however.
The trial judge stated that the central issue was petitioner's 'relationship with Moore,' not just her sex life with him. The record reveals that the relationship involved more than an occasional rendezvous, with the children sent off to grandma's house. In fact, Moore practically lived with petitioner and her children on a permanent...
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...See Smothers v. Smothers, 281 So.2d 359, 360 (Fla.1973) ("[A]dultery on the part of a mother--in and of itself--will not necessarily disqualify her to have custody of her The findings of fact by the family law master, adopted by the circuit court, concluded that defendant's conduct in repea......
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...of her child Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Another slightly older Supreme Court case said the same. See Smothers v. Smothers, 281 So.2d 359 (Fla.1973). This latter case, however, is not unequivocal, for the court there suggested that a live-in arrangement would have more of an ......
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