Stewart v. Stewart

• Decision Date: 22 January 1946
• Citation: Stewart v. Stewart, 156 Fla. 815, 24 So.2d 529 (Fla. 1946)
• Parties: STEWART v. STEWART.
• Court: Florida Supreme Court

24 So.2d 529

156 Fla. 815

STEWART v. STEWART.

Florida Supreme Court

January 22, 1946

Appeal from Circuit Court, Manatee County; W. T. Harrison judge.

Alvan B Rowe, of Bradenton, for appellant.

George O Lea, of Bradenton, for appellee.

SEBRING, Justice.

Mildred Stewart instituted a suit for divorce against her husband, Sam Stewart, on the grounds of habitual intemperance, extreme cruelty by defendant to plaintiff, habitual indulgence by defendant in violent and ungovernable temper, and desertion.In the bill of complaint she prayed that a decree be entered granting her the custody and control of the two-year old girl child of the parties.The defendant answered, putting the plaintiff to proof of the allegations of her bill and denying her fitness to have the child, and testimony was taken before the court on the issues.At final hearing the court entered its decree dismissing the bill of complaint for failure of the plaintiff to prove grounds for divorce.With respect to the minor child of the partiesthe court decreed that the child be awarded to the father for the months of January, February, May, June, September and October of each year, and to the mother for the remaining months of the year, with the right of visitation to the parent out of custody of the child at reasonable places and times.The plaintiff has appealed from the decree of the court and has assigned as error the refusal of the court to grant the decree of divorce, and the refusal of the court to give the plaintiff exclusive care, custody, and control of the child.

The testimony offered on the issue of divorce is in sharp conflict.There is ample evidence to sustain the court's finding that the bill of complaint should be dismissed for want of proof.The court's decree on the issue of divorce, therefore, will not be disturbed but will be affirmed.

The question of the custody of the girl baby presents another matter.It is the law that in a proceeding involving the custody of a minor child, the welfare of the child is the controlling consideration.Ordinarily, in the case of a child of young and tender years its welfare is not best promoted by ordering a divided custody of such child between the parents, or by taking the child from the mother unless it be shown that she is not a fit and proper person to rear it during its tender years.SeePhillips v. Phillips,153 Fla. 133, 13 So.2d 922;Fields v. Fields,143 Fla. 886, 197 So 530;Jones v. Jones, Fla.,23 So.2d 623.The decree of the court awards the custody...