JERRY MOSCA, APPELLANT,
v.
TRESSIE FAYE MOSCA, APPELLEE
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This case involves a husband appealing a divorce decree that granted custody of the children to the wife. The appellate court affirmed the lower court's decision, finding no abuse of discretion in the custody award and no error in denying the wife a divorce on her counterclaim.
No, the chancellor did not abuse his discretion in awarding custody to the wife. No, the chancellor did not err in failing to grant the wife a divorce on her counterclaim or a divorce to both parties.
“There is competent evidence to support the award of custody by the chancellor and no unreasonableness or abuse of discretion on his part has been demonstrated and, therefore, the error assigned by the appellant is found to be without merit.”
This quote establishes the court's reasoning for affirming the custody award.
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Join FLexlaw to unlock all legal intelligenceThe husband appealed a final divorce decree. The decree granted custody of the minor children to the wife. The wife also sought a divorce on her count…
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The appellant-husband seeks review of a final decree of divorce, in which the custody of the minor children of the parties was granted to the appellee-wife. The appellee has cross-assigned error in the failure to award her a divorce upon her counterclaim or, in the alternative, to award a divorce to both parties.
There is competent evidence to support the award of custody by the chancellor and no unreasonableness or abuse of discretion on his part has been demonstrated and, therefore, the error assigned by the appellant is found to be without merit. See: Dworkis v. Dworkis, Fla.App.1959, 111 So.2d 70, 72 A.L.R.2d 1189.
The appellee has failed to demonstrate any error in the awarding of the divorce to the husband and it would have been erroneous for the chancellor to have awarded a divorce to both parties. See: Friedman v. Friedman, Fla.1958, 100 So.2d 167.
Therefore, the final decree of divorce is affirmed in all respects.
Affirmed.
(dissenting).
It is my view that the award of custody contained in the final decree should be reversed and the cause remanded for a retrial of that issue because of error prejudicial to the appellant-father, in that the chancellor mistakenly rejected competent evidence as to the fitness of the appellee-mother to have custody of the minor children. It is axiomatic that the prime concern of a court in determining custody is the welfare of the children.
While a father may he estopped to present evidence as to premarital conduct of a wife upon the issue of divorce, it does not follow that this principle of estoppel should be applied to a situation involving the welfare of the children. The State has an interest in the well-being of the children in this case which transcends the rights of the parties and their dealings with each other.
I think the evidence proffered had a direct bearing upon the fitness of the appellee to have custody of the children and directly affected their welfare. As such it should have been heard and considered by the chancellor. Cf. Blue v. Blue, Fla.1953, 66 So.2d 228.
PEARSON, TILLMAN, Chief Judge
(dissenting).
It is my view that the award of custody contained in the final decree should be reversed and the cause remanded for a retrial of that issue because of error prejudicial to the appellant-father, in that the chancellor mistakenly rejected competent evidence as to the fitness of the appellee-mother to have custody of the minor children. It is axiomatic that the prime concern of a court in determining custody is the welfare of the children.
While a father may he estopped to present evidence as to premarital conduct of a wife upon the issue of divorce, it does not follow that this principle of estoppel should be applied to a situation involving the welfare of the children. The State has an interest in the well-being of the children in this case which transcends the rights of the parties and their dealings with each other. I think the evidence proffered had a direct bearing upon the fitness of the appellee to have custody of the children and directly affected their welfare. As such it should have been heard and considered by the chancellor. Cf. Blue v. Blue, Fla.1953, 66 So. 2d 228.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Toth v. Toth, 228 So. 2d 295 (Fla. 3d DCA 1969)…and the wife’s needs for alimony and to award to the wife a reasonable sum for alimony. It is so ordered. . The divorce should have been awarded to one or the other. See Friedman v. Friedman, Fla.1958, 100 So. 2d 167; Mosca v. Mosca, Fla.App.1962, 144 So. 2d 80; and Batteiger v. Batteiger, Fla.App.1959, 109 So. 2d 602.…
Authorities Cited
- Dworkis v. Dworkis, 111 So. 2d 70 (Fla. 3d DCA 1959)
- Blue v. Blue, 66 So. 2d 228 (Fla. 1953)
- Friedman v. Orrie M. Friedman, 100 So. 2d 167 (Fla. 1958)