DAVIS H. BARRINGER, APPELLANT,
v.
EMILY MABEL BARRINGER, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this family law appeal, the court affirmed the trial judge's decision to modify a divorce decree by transferring custody of two minor children from the father to the mother, but reversed the award of attorneys' fees and costs to the mother.
The trial judge did not reversibly abuse its discretion in transferring custody to the mother, and that modification is affirmed. However, the trial judge erred in awarding attorneys' fees and costs to the mother, as such fees are only awardable to parties enforcing a judgment or defending against a modification petition, not to parties attacking an original judgment.
[1] A trial judge retains some discretion in modifying a custody judgment, even though discretion is broader in entering the original judgment.
[2] A trial judge's discretion in modifying a custody judgment will not be reversed unless it is shown as a matter of law that the discretion was abused.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although we recognize the rule that the trial judge has a "broader discretion" in entering the original custody judgment than in deciding a petition to modify, some degree of discretion nonetheless inheres in the trial judge as a finder of fact in the latter proceedings.”
Establishes the standard of review for modification of custody—trial judges have discretion but less than in original judgments
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA divorce judgment originally awarded custody of two minor children to the father (appellant). The mother (appellee) filed a petition to modify the cu…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Modification Of Divorce Judgment cases and more on FLexlaw
This appeal is brought from an order modifying a judgment of divorce by transferring custody of two minor children from appellant-father to appellee-mother. Appellant raises four points on appeal, three of which concern the merits of the change of custody and one which concerns the propriety of awarding attorneys’ fees and costs to appellee. We affirm as to the custody modification but reverse the award of attorneys’ fees and costs.
Although we recognize the rule that the trial judge has a “broader discretion” in entering the original custody judgment than in deciding a petition to modify,1 some degree of discretion nonetheless inheres in the trial judge as a finder of fact in the latter proceedings. Viewing the record as a whole, with its conflicting testimony and evidence concerning changes in circumstance and the welfare of the children, we cannot say as a matter of law that the trial judge reversibly abused that discretion - in changing custody from the father to the mother.
The trial judge was in error, however, in granting attorneys’ fees and costs to appellee herein. The cases are clear that such monies are not awardable to the party who attacks an original custody or divorce judgment but only to one who seeks enforcement of such judgment or who defends against a petition for modification thereof.2
Accordingly, we affirm that part of the judgment appealed from relating to custody, and reverse that part awarding attorneys’ fees and costs.
Affirmed in part, reversed in part.
MANN, J., concurs.
LILES, Acting C. J., dissents.
(dissenting).
I would respectively dissent in the judge’s order transferring custody of the minor children from the father to the mother. I recognize the broad discretion set forth in the majority opinion. However, it is my view that from a complete review of the record the trial judge abused his discretion and that he has not found this transfer to be in the best interests of the children.
I would concur in the reversal regarding attorneys’ fees.
Reversed as to change of custody and awarding of attorneys’ fees.
LILES, Acting Chief Judge
(dissenting).
I would respectively dissent in the judge’s order transferring custody of the minor children from the father to the mother. I recognize the broad discretion set forth in the majority opinion. However, it is my view that from a complete review of the record the trial judge abused his discretion and that he has not found this transfer to be in the best interests of the children.
I would concur in the reversal regarding attorneys’ fees.
Reversed as to change of custody and awarding of attorneys’ fees.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Belford v. Belford, 159 Fla. 547 (Fla. 1947)
- Simpson v. Simpson, 63 So. 2d 764 (Fla. 1953)
- Wilson v. Condra, 255 So. 2d 702 (Fla. 1st DCA 1971)
- Harris v. Rosalyn Harris, 138 So. 2d 376 (Fla. 3d DCA 1962)
- Fleming v. Fleming, 177 So. 2d 384 (Fla. 3d DCA 1965)
- Kennedy v. Ford R. Vandine, 177 So. 2d 384 (Fla. 3d DCA 1965)
- Elliott v. State, 258 So. 2d 50 (Fla. 1st DCA 1972)
- Colbath v. Colbath, 258 So. 2d 50 (Fla. 2d DCA 1972)