*1 with, dealt can paid school claim of character here be"justified (Duval when statute provided specially Co., County Fla. v. Charleston & Engineering Con. had Rep. 509); inception So. its or where the contract at included in an inter- authorized agreeing pay est on deferred under payments required be made the con- tract. on, No such stipulation appeared the contract sued nor anwas agreement to interest authorized to be made pay by the school board after had service been completely ren- executed, dered and the fully since there was no contract valid consideration for such an undertaking. affirmed, from appealed should be judgment on however, shall, condition, in error within ten defendant days below, after the in the filing mandate Court enter a remittitur of all interest on the of the claim principal on, sued that was in the computed judgment included prior to cover any period to the date entry taken, the final this writ error judgment to which stand reversed and judgment the cause otherwise remanded for further to law. proceedings according
Affirmed on condition remittitur. J.,
Whitfield, Buford, Terrell, concur. Brown and J. Appellant, Frazier, Frank Frazier, Duff Brenda now and F. N. Appellees Watriss, Brenda Watriss
Re-hearing *2 Wideman, Jackson, Wideman & Fuller, Wardlaw Nash & Brophy, for Appellant; Anderson, Wise,
Robert H. Donovan Vais & Sullivan & (N. Y. R. City) France) Leslie Naftsger (Paris Appellees.
Per Curiam On a decree of divorce January was' entered in Palm County the Circuit Court of Beach di- husband, from Frank Brenda Frazier her Duff vorcing Frazier, on the desertion. In that it was ground of ac- provided, pursuant parties, to a written Chancellor, that the cepted approved by *3 and control child born of the Diana marriage, of the Frazier, awarded follows: “The be said child Diana shall remain in the custody paternal of her Clara grandmother, Frazier, 1926, Duff until the 15th and there- day May, after from 15th until the 15th in succeeding October May each such deemed that of the defendant year, custody to b.e 15th, 1926, Duff and from until (Frank Oc- Frazier); May 15th, 1926, tober and from 15th until 15th in October May each the said Diana shall in the succeeding year, be custody complainant, of the Brenda Frazier. In the event of tbe Frazier, death Duff the of said Clara custody the said child, divided, Diana, between equally complainant shall and defendant.” in the
There were provisions affecting additional which not material to be recited here. custody, Diana’s are 8, 1928, On for modification of the de- February petition mother, cree filed her who affecting by Diana’s custody Brenda Frazier by had become Watriss. marriage, 17, 1931, after volumes of had testimony On November the court for and' against been taken and submitted to mother, which had petition and counter petition court entered an order amend- father, filed been by the decree, control by awarding the final ing Diana, mother, Brenda child, her Frazier Watriss. to Frazier, Duff provided The amended decree that-Frank at all reas- Diana father, to visit with should have leave should that he places, onable and times and convenient him his at Diana visit daughter his have “leave” to have place convenient expense at some reasonable not exceed the calendar times, year which in each of two weeks. aggregate father, Frank Duff been taken by
This has appeal It Frazier, final decree. has pre- amending to order this cause on filed in dealt with an opinion been viously 102, 1932, in 105 Fla. reported 14th of January, day motion appellant’s respect So. his appeal. supersedeas pending allowance of a in accordance decree of original January with a written between decree, filed in in the divided approved record and betwen the child’s father and of the child equally mother, Frazier, Duff the grand- after the death of Clara decree, final which is not mother. The amendment to the effect, from, all in- operation appealed practical father of tents and the child’s purposes, deprives entirely s'o, because its This custody. substantial is out of each period year, with the of a two weeks exception *4 “leave” to have his child which father is during granted him, and her is to the mother entirely visit the custody given latest husband. court to mod-
The reserved of original decree such mod- require it at some future date should occasion ify an This is author- Diana’s'custody. ification respect decrees, at the because no decree made provision ized such may which changes anticipate divorce can of granting time for the decree necessitate modifying will later occur recognized courts' have war- that the those causes sufficient fixing custody its decrees a court in changing ranting attention. court’s to the brought of children when 168
It state that the cus- undoubtedly proper is law this aof minor child of divorced is a tody parents subject proper at consideration time Court which judicial by the Meadows, granted decree of divorce. Meadows v 78 Fla. 576, 392. But it the law that a de- 83 So. is likewise Rep. suit, in a cree divorce a child of the fixing custody divorced, based whether on en- being court, and parties approved by tered into or by the court after adversary hearing whether entered is, determination, a contested issue the matter respecting nevertheless, on a final Court the conditions then and is to be existing, materially amended or afterward, unless on altered changed conditions shown to decree, arisen since the because material have facts on of custody bearing question at the time existing decree, but which were unknown to the Court Cariens, then for the welfare of the child. Cariens v. 335; 113, 50 930; W. Va. 40 E. 55 Rep. S. L. R. A. Daw 520, 613; son v. 57 W. Va. E. Dawson, S. Rep. 800; Gatlin, 815, A. R. Milner v. E. S. Ga. S. 977; R.L. A. 1916 B 19 C. 350. J. rule is that a decree in proper a divorce case provid- ing for the care of child of the marriage is to be regarded adjudicata as res as of the the de- cree, but effect attributing to it such does not prevent a sub- adjudication sequent jurisdiction in the same touching maintenance the child. B, Ann Cas. 1916 894, note. Meadows, Meadows v. supra.
The statutes recognize natural, state inherent and consequently legal, right of parents to have the custody of their children. This is a principle resulting from their maintain, obligation protect and educate them. See Chapter Acts of 5884 C. Section G. L. These *5 nature, are as upon thrown the laws of parents by duties well as of society and the state.
The of primary for chil- duty support maintenance ren rests father —a he is upon duty not tc permitted and which disregard, he could conveniently discharge if the of objects his are withdrawn from his duty entirely control. 9 R. C. L. 471. when a court is Consequently, called after upon, parents, divorce to determine who shall have the care children of the marriage, it must into take consideration all of the circumstances of case, each particular the children in s'uchman- dispose of ner as as far may preserve, practicable, rights parents and best which also calculated to secure appear attention, the children well as virtuous proper care education. must, course, welfare the child regarded be Thomas, (Hernandez chief consideration Fla. S.) Rep. So. 2 L. R. St. (N. A. Am.
137, 7 Ann. inherent Cas. rights parents to 446), enjoy society and association of their offspring, reasonable them a opportunity impress upon father’s or a mother’s in their love affection must be upbringing, regarded as of an being important, if not control- equally in ling consideration as be- adjusting tween cases'. No ordinary relationship life sublime, as more regarded nor should inher- ent right of an individual be esteemed more than highly, that which arises out of the natural relationship love and affection which normally exists between parent and what regardless of may private be the individual code of morals, race, color, creed or in life of station father or mother. instance,
In child the first awarding custody Chancellor, a very permitted discretion must be to the large *6 170
and this Court has times that is the many recognized so such applicable rule of But discretion is a dis- judicial law. cases, cretion in even s'uch subject judicial is review. Harris, 587, 187; v. 115 Harris N. C. 20 S. E. 44 A. S. Rep. 471; 191, R. Scott, Cohn v. 231 Ill. E. 83 N. Rep. 121 A. S. R. 342. is children thought The dominant that chattels, are not intelligent beings, and moral beings that, isuch, their welfare and of first happiness is con- sideration. Kenner, Kenner v. 139 201 Tenn. S. W. Rep. L. R. A. 1918E 587. the fact a child But that would have prospects better advantages custody or other, one parent than in that of the able and that one is not, to do much never for the child other is has that been considered factor a controlling determining question of if all are custody, sup- the child’s needs Kenner, plied either Kenner v. situation. supra. It has been held expressly illegal is who separated, have enter or into a stipulation contract with each other for and maintenance of their always stipulation but that such contract is subject or court, to the acceptance and approval which should contract, not recognize such one in- it is which unless* care proper sures the and maintenance of child. Edle- Edleson, son 300 200 R. Ky., S. W. A. L. 689. it,
In the case Court now before a has such contract was entered between the duly parents, into approved thereafter it Chancellor and made part final decree divorce which his fixed child, Diana, in accordance therewith. As been has out, final decree pointed such res adjudicata hereinbefore is decree, prevent, but does not upon the time laid, touch- a subsequent adjudicaton proper being basis ing the care and maintenance of involved, the child when *7 and facts conditions arisen have which warrant and justify such modification. Taylor, Weatherton 124 Ark. v. 187 S. 450; W. Rep. Milner (Ga.), Gatlin Mead supra; ows v. Meadows (Fla.), supra. case,
The record in this it consisting of does many pages of testimony alleged of concerning acts misconduct parents, of the have charged to been in committed both domestic and foreign jurisdictions, is not of character such parent that either can point to unabashed confidence in her behalf, his or establishing any superior qualifica- for tion parental exercising rights over eleven-year-old an female child. parents
Both have been re-married their since divorce. Neither of them shown is the record by to be position in a to involved, commend to child here when attains she her majority, perusal a this pages of for transcript the purpose of her enabling to search out and follow good example or of conduct character heretofore by set either them. of Whether charges or counter- not the true, charges that been regarded have made are to be is proposition a which we from ex- concerning refrain opinion. pressing any shows the child’s father evidence that is wealthy material welfare Diana Frazier that the will be amply for,
provided be however divided between parents. support There the con- contentious is evidence to former clusion a in the decree change fixing that the cus- in- between is in the tody justified of Diana more of society child to have allowing terest her age, children other own also association of her interruptions program to undue' prevent order evidence But is no sufficient to there schooling. warrant able better so much that mother is the conclusion that father should advance interests of the time, deprived it for two except all entirely year. each weeks
The father “leave” not entitled have for the is year, child him for entitled to visit two weeks each is its for sufficient to have and enjoy society reasonably enable him time each to- inculcate in her length year of, love, mind affection spirit respect her father. A opinion the Court are of the can majority be accomplished so present as to modifying n permit father of his society to have child year, than three in each period less months such at *8 authorize, as Chancellor may the in view having program the educational the child.
To the extent that decree appealed the from to denies the father the have companionshp, to' the society of his child for least months in each at three year, appears to based have! been on an con- erroneous ception relative of the rights parents, of the well on as as a mistaken view the issue is required that de- to be toi cided like in a this. proceeding final decree
Where a once already has definitely fixed the custody of a minor child between its parents, divorced petition the a decree, effect of filed to modify the is to raise issue an as to whether not sufficient exists cause at the filing petition' the and subsequently, require to a change provisions the of the earlier decree the respecting custody. trial issue child’s of such an involves de- proposition, not, whether termination the there is any factual sufficient show basis to have become conditions since the entry altered materially previous the decree. legal equally important But another proposition involved is what be appropriate scope the found any change made, to be he for the to necessary provide to in order child’s welfare legal and at the preserve rights same time the its the child’s to reasonable control. custody and
By original the decree the father ordered to to pay maintenance, the child’s mother for her support and for child, Frazier, support maintenance Diana the sum fifteen thousand year. dollars So far present support concerned, and maintenance of child is the father present has been ordered by pay decree to of-Diana, for support month, sum per $750.00 a sum which the' father objected has not. paying in past because former decree accorded him substantial rights in the present child’s allowance custody. While the appears to be extravagant purpose will dis- we turb present, it for the though we do not wholly approve it view of change period of custody made. nowi
That father has an unusual feeling of affection for his only daughter been has not Indeed successfully refuted. appears trait one of be few commendable char- has shown in he an acteristics otherwise sordid career. parent Neither appears to have in the past, been ap- nor now, pears paragon of in parenthood. virtue Nor can it be said that the mother of the even under the improved conditions claimed *9 since to her last marriage, exist is on this record entitled more to consideration aas parent than is the father.
A majority the are Court of the opinion that the order amendatory appealed from justified was the by evi- dence, in far so as it found the welfare of the child required a the change in prevailing arrangement for di- vided custody. But a majority of the are Court likewise opinion the that the Chancellor in error in com- so to, effect, deprive earlier decree in
pletely altering the as the child’s father practically vestige personal his every companion- associate the reasonably enjoy with ship grow- of his Parental father rights of the only child. ing out of father’s legal the well responsibility, recog- nized moral obligation, maintain and care for the both children, mother and their when other do considerations predominate not against in materially the interest children, due welfare of must be consideration by accorded order, order, in in an court an making changing the father. enjoyed children therefore by 157; See Hopkins Hopkins, Rep. Fla. Sou. 94. Proskauer, Fla. McCann v. Sou. 621. appealed from be affirmed part part, x'eversedin and the cause rexnanded to court below for the an entry of amended decee inconsistexit expressed the views the costs to assessed opinion, against parties. equally
Affirmed in part, remanded. part reversed in Davis, J.,C. Whitfield, J., Judge,- Cicuit Johnson, concur.
Terrell, J., agrees to the conclusion.
Brown and Buford, J., dissent. J. Buford, J., Dissenting. find ample record evi- —I dence to support the decree entered by the Chancellor who had parties and witnesses before him. I find no evidence reflected record that the Chancellor either miscon- ceived or misapplied the law governing such cases. The record abounds with undisputed proof that between of the entry original decree and time of entry of the modified decree the father here involved availed him- self but little if any pleasure or privilege society or contx-olof the child. That he care, her to left so- *10 control for that ciety persons employed by pur- him pose pursued while he in which she pleasure conduct' participate. could not I think
The decree affirmed. should be Brown, J., concurs. cause further con-
Per Curiam. This on for coming sideration for it seems upon Appellee’s re-hearing, a petition re-hearing a petition Court that a majority herein, denied, Court should be that the judgment against appel- the costs respect with one-half taxing lees, entire against costs be modified tax the so as to Frazier, whose Frank Duff the father of the involved, issue in accordance mandate to was here the order. It ordered. is so Savings Bank, Florida corporation,
First Trust & under the last Will and Executor as Trustee of deceased, Henderson, A. and indi Parker Testament of widow, Henderson, vidually, Appellant, Julja Henderson, Ap A. Henderson, Jr., A. Parker J. pellee. So. 21, 1933. March filed
Opinion