Whitten v. Whitten, 80-2108

• Decision Date: 18 December 1981
• Docket Number: No. 80-2108,80-2108
• Citation: 407 So.2d 367
• Parties: Sylvia L. WHITTEN, Appellant, v. Robert C. WHITTEN, Appellee.
• Court: Florida District Court of Appeals

Page 367

407 So.2d 367

Sylvia L. WHITTEN, Appellant, v. Robert C. WHITTEN, Appellee.

No. 80-2108.

District Court of Appeal of Florida, Second District.

Dec. 18, 1981.

John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, Clearwater, for appellant.

Joseph R. Park of Joseph R. Park, P. A., Clearwater, for appellee.

HOBSON, Acting Chief Judge.

Appellant wife appeals a judgment which modified appellee husband's visitation privileges with the parties' minor daughter.

The parties' marriage was dissolved in September, 1979. Custody of the child was awarded to the wife. The wife claimed that the husband had sexually molested the child, and allegation which the husband denied. Both parties agreed to submit to polygraph tests and stipulated that the results of each test would be admissible at the final hearing. The polygraph tests were administered on August 21, 1979, by a Mr. Williams. His report indicated that the charges of sexual abuse were true. On August 29, 1979, the husband took a second polygraph test administered by a Mr. Davis. The following day at final hearing the results of the first polygraph test were admitted into evidence as stipulated and considered by the court. At the conclusion of the hearing, the husband's counsel stated that his witness, Mr. Davis, was unable to be present at the hearing and requested a continuance in order to receive his testimony. The court replied:

THE COURT: ....

On the ruling of the Court, is there anything further, Mr. Park? The Court would acknowledge that you have suggested that you have an additional witness to testify on the test given to your client, the Stress Evaluation but that witness is not here today and cannot be here today. The Court will not continue the case further to have the witness brought in but, advises you that in as much (sic) as the visitation rights-the rights concerning visitation will be subject to a further hearing if necessary. You may bring in that witness, at that time.

Husband and wife agreed that the issue of visitation could be addressed at a later hearing, and the court entered a final judgment of dissolution which stated in paragraph 10:

That the Court retains jurisdiction of this cause for the purpose of entering further orders pertaining to visitation as may become necessary as a result of any further evidence presented to this Court and further, in order to enforce the executory provisions of this Judgment.

The judgment allowed the husband weekly visits with...