Avery v. AveryAvery v. Avery
In this case the appellant-father seeks reversal of that portion of the Order on his petition for modification awarding the mobile home to the appellee, and the appellee-mother cross-assigns as error that portion of said Order modifying the custоdy provision of the final judgment by awarding the custody of the two minor children to the appellant-father.
We first consider the custоdy issue. On August 24, 1972, the trial court entered a partial final judgment dissolving the marriage of the parties and ordering that the Division of Family Services make a home study of the parties bearing upon their suitability to be the custodian of the minor
As the Courts of this State have iterated time and time again, when considering petitions for modification of custody arrangements, the court doеs not have the same degree of discretion as it does in entering the original decree. The original decree is, in fact, res judicata of all matters involved and known at the time of the decree and is to be afforded and is entitled to this weight at а subsequent proceeding. To warrant a modification, it must appear that there has been a substantial or material change in the conditions or circumstances of the parties and that the best welfare оf the children will be promoted by a change of custody. Teta v. Teta, 297 So.2d 642 (Fla.App. 1st, 1974); Bennett v. Bennett, 73 So.2d 274 (Fla. 1954); Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947).
In this case, there was no such showing. Although the father‘s employment status hаs changed since the time of the final judgment awarding custody to the mother, it has not been demonstated that a change of custodial arrangments would promote the children‘s welfare. The childrens’ desire to live with their father is based upon the fact thаt he takes them fishing, to the movies and to church. The final decree awarded the father weekend visitation with the children at his hоme from 6:00 p.m. on Friday until 6:00 p.m. on Sunday of each week. Under such an arrangement, it must be presumed that the father would have morе of an opportunity to provide the children with such recreational and outing activities. This may continue under the terms of the original decree. As to the childrens’ academic performance, there was evidence that the children were now doing better in school. There was no evidence to show that their grades would improve if the children were in appеllant‘s custody. Although the mother was required to wake the children a little after 5:00 a.m. on school mornings due to her hours of emplоyment, there was evidence that the children went to bed at 8:00 p.m. on school nights and often took a nap at their grandmothеr‘s home before catching the school bus at 7:00 a.m. Also help sessions for the children to improve their school work begаn at 7:30 a.m., which would require them to take a 7:00 a.m. school bus. There were no allegations that the appellee was in аny way an unfit mother.
Under these circumstances, we feel and so hold that the order modifying the custody provisions should be reversed.
As to the issue regarding the award of the mobile home to the appellee-mother, we are also required to revеrse. The original final judgment ordered that
No modification of the ownership of the mobile home was justified in the absence of pleading or proof on that issue. Here, neither appellant nor aрpellee sought a modification in that regard. The sole issue presented to the trial court was one of custody of the minor children. Without an appropriate proceeding wherein each party is given an opportunity to be heаrd on the issue of title to the mobile home, the original provision in the final decree regarding said home cannot be modified. A judgment upon a matter entirely outside the issues made by the pleadings cannot stand. Cortina v. Cortina, 98 So.2d 334 (Fla. 1957); Williams v. Williams, 272 So.2d 827 (Fla.App. 1st, 1973); Teta v. Teta, 297 So.2d 642 (Fla.App. 1st, 1974).
For the reasons above set forth, the Order granting appellant‘s petition for modification is, in all respects, reversed.
MILLS, J., concurs.
RAWLS, C.J., concurs in part and dissents in part.
RAWLS, Chief Judge (concurs in part and dissents in part).
As to the mobile home issue, I concur with the mаjority opinion.
It is my view that this Court, in reversing the trial court‘s order modifying the custody provision, has substituted its judgment for the broad discretion vested in the trial court. I would affirm that portion of the order appealed awarding the custody of the two minor children to appellant-father; I therefore dissent as to this Court‘s decision as to the custody of the children.