State ex rel. Sparks v. Reeves

• Decision Date: 18 September 1957
• Citation: 97 So.2d 18
• Parties: STATE ex rel. Charles B. SPARKS, Appellant, v. Mrs. A. E. REEVES, Appellee.
• Court: Florida Supreme Court

Page 18

97 So.2d 18

STATE ex rel. Charles B. SPARKS, Appellant, v. Mrs. A. E. REEVES, Appellee.

Supreme Court of Florida.

Sept. 18, 1957.

David Lanier, Madison, for appellant.

John K. Folsom and Hopkins & Folsom, Tallahassee, for appellee.

THORNAL, Justice.

Appellant Sparks who was petitioner below in a habeas corpus proceeding involving the custody of two children seeks reversal of an order of the Circuit Judge denying the prayer of his petition.

The determining question is whether the showing made by the appellant who was the father of the children was sufficient to justify a transfer of custody from the appellee who was the grandmother of the minors.

An earlier phase of the case was here before. State ex rel. Sparks v. Reeves, Fla.1955, 81 So.2d 754, 755. Our opinion on the prior appeal adequately delineates the factual background. Subsequent to the prior opinion and on July 8, 1956, the appellant-father filed a second petition in the Circuit Court. By the prayed of this petition he requested the Circuit Judge to modify the original order of May 1, 1953, by which the custody of the children was awarded to the appellee-grandmother subject to change by further order of the Court. Our 1955 opinion affirmed an order of the Circuit Judge entered on December 10, 1954, by which the Judge declined to transfer custody from the grandmother to the father but again retained jurisdiction to enter such further orders as the welfare of the children might justify.

At the hearing on the petition now under consideration it appears that the appellant-father has diligently exerted every reasonable effort to justify the restoration of custody of his children. It is shown that he has regularly contributed financially to the support of the children, that he has purchased a home in Brevard County, is happily married, has a good job, earns a livable wage; he is morally stable, sober and apparently exceedingly anxious to have his children with him. It also appears that the appellee and her husband, the maternal grandparents of the children, have demonstrated themselves to be loving and devoted grandparents. They too are highly respectable people who obviously work hard to produce a living and who bestow upon their grandchildren such care and attention as has justified the respect and admiration of the community. On the basis of the showing made in July, 1956, however, the Circuit Judge remained of the view that the welfare of the children did not justify a change in custody and that the appellant-father had failed to show a sufficient change in circumstances between the order entered in December, 1954, and the hearing in July, 4956, to justify a change in custody. The Circuit Judge again declined to transfer the custody of the children to their father but retained jurisdiction to enter such further orders as might appear proper. Reversal of his order is here sought.

It is the contention of the appellant-father that he has now demonstrated himself to be worthy of enjoying the custody of his children and that he is able and desirous of providing for them a comfortable home and bestowing upon them the paternal care and affection that is both his privilege and his obligation.

The appellee on the other hand contends that she and her husband have provided for the children since they were babies, that they are devoted to them and in the ultimate that the happiness and welfare of the children precludes any change in their custody.

We, like, the Circuit Judge, are confronted with one of the most difficult of all problems to resolve. Our own consideration of the matter is necessarily influenced by the fact that the cause was heard below by an exceedingly able and experienced Circuit Judge who resolved the evidence in favor of the appellee. While we are here constrained to hold that the presumptive correctness of the order of the Circuit Judge has not been clearly overcome so as to justify a reversal, we are likewise compelled to point out that any subsequent consideration of this matter should be determined in the light of certain well-established principles which we herewith mention for the guidance of the parties and the trial Judge.

In our prior opinion we pointed out that under the circumstances indicated as of November, 1954, it would be an unjustifiable experiment to transfer the custody of the children 'at least until such time as the appellant has more clearly demonstrated his parental interest in, and desire to care for, his children.' We did, however, point out that the father had not permanently relinquished his right to enjoy the custody of his children. We did hold that he should more clearly demonstrate and give evidence of his right to enjoy the privilege by his future conduct. The question, therefore, recurs...