HANNELORE E. FAULK BRANDON, APPELLANT,
v.
LANDIS FAULK ET UX., APPELLEES
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In this family law appeal, a mother challenged the trial court's denial of her petition to modify a custody restriction imposed in a divorce judgment, which limited her ability to move the minor child out of the First Judicial Circuit of Florida. The appellate court affirmed the denial but permitted the mother to renew her application after her remarriage had lasted six months.
The trial court's order denying the modification was affirmed, but the mother was permitted to renew her application for modification after her remarriage had existed for six months from December 1, 1973, without the grounds previously alleged being considered res adjudicata.
[1] A trial court's order denying a petition to modify child custody restrictions in a divorce judgment will be affirmed if the record provides insufficient evidence to demon…
[2] In the absence of evidence establishing the natural mother's incompetence or inattentiveness, custody is normally awarded to the mother.
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“in the absence of some circumstances making the natural mother an incompetent and unattentive mother, the normal custody would be awarded to the mother”
Establishes the presumption favoring natural mother custody absent proof of incompetence
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Join FLexlaw to unlock all legal intelligenceThe mother was awarded custody of the minor child in a July 14, 1971 divorce judgment but was restricted from removing the child from the First Judici…
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JOHNSON, Judge.
This is an appeal from an order denying appellant’s oral petition to modify the court’s restriction of the minor child to the First Judicial Circuit of Florida, as provided in the final judgment of divorce entered July 14, 1971.
It appears from the record, primarily from a colloquy between the Court and the respective counsel for the parties, that the mother was a competent and attentive mother. Also that the father was all right. That the paternal grandparents, who lived in Okaloosa County, Florida, where the appellant and the minor child resided, are also upstanding citizens and would be excellent people to have the custody of the child.
It further appears that the appellant-mother has remarried; that the father lives and works in Atlanta, Georgia, and that appellant’s new husband has a job in Memphis, Tennessee. The trial court suggested that the counsel for each party give a summary of what each intended to prove by witnesses, and stated that unless there was substantial evidence of substance pertaining to the welfare of the child, he was not going to change his ruling. About the only real change appeared to be that the appellant had remarried.
The Court said that when he entered the final judgment of divorce in which he granted custody of the minor child to the mother, he did so with some reservations and concern about awarding the custody to the mother. The trial court refused to modify the final judgment in any respect; hence this appeal by the mother. We do not have a record of the proceedings resulting in the dissolution of marriage, so we do not know just what the trial court’s reservations were about, but the record does show us enough to convince us that the part played by the paternal grandparents was a determining factor in the trial court’s decision as well as to how long or how good the mother’s new marriage would stand. We can well understand the trial court’s concern of the welfare of the child and how easy it was to rely on the grandparents as watchdog loyalty to the child, but, we are also aware that in the absence of some circumstances making the natural mother an incompetent and unattentive mother, the normal custody would be awarded to the mother. Because of the short duration of the new marriage of the appellant, and based upon the scarcity of the record, it is the opinion of this Court that the trial court’s order denying the modification should be and is Affirmed, but without prejudice to the appellant to renew her application for modification at any time after her present marriage has existed for six months from the date of December 1, 1973, and grounds alleged in the application herein appealed from will not be res adjudicata if alleged in the new application.
Affirmed, without prejudice.
SPECTOR, Acting C. J. and WIGGIN-TON, John T., Retired, concur.
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McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)…grounds for modification of custody. See, e.g. Sanders v. Sanders, supra; Wiggins v. Wiggins, 411 So. 2d 263 (Fla. 1st DCA 1982); Stricklin v. Stricklin, supra, footnote 5. Cf. Prevatt v. Penney, 138 So. 2d 537 (Fla. 2nd DCA 1962); Brandon v. Faulk, 287 So. 2d 714 (Fla. 1st DCA 1974). . Although we find no necessity to agree or disagree with these opinions and comments in the disposition of the case, see, Judge Glick-stein's thoughtful majority opinion in Costa v. Costa, supra, and Judge Anstead’s equally re…
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Costa v. Costa, 429 So. 2d 1249 (Fla. 4th DCA 1983)…he final judgment — which is supported by substantial authority. See Giachetti v. Giachetti, 416 So. 2d 27 (Fla. 5th DCA 1982); Foss v. Foss, 392 So. 2d 606 (Fla. 3d DCA 1981); Schemer v. Schemer, 336 So. 2d 406 (Fla. 3d DCA 1976); Brandon v. Faulk, 287 So. 2d 714 (Fla. 1st DCA 1974) [*1252] Fla. and McManus v. McManus, 238 So. 2d 473 (Fla. 2d DCA 1970). After the decision of the trial court in this case, the Florida Legislature enacted Chapter 82-96, Laws of Florida (1982), amending sections 61.13(2)(b) and…
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Hannelore Faulk Brandon v. Faulk, 326 So. 2d 76 (Fla. 1st DCA 1976)…ion, seeking the child’s custody. The trial court denied both petitions whereupon an appeal was taken to this Court which affirmed without prejudice to a renewal by appellant of her petition for modification. (See Brandon v. Faulk, Fla.App.1st 1974, 287 So. 2d 714) In September of 1974 appellant filed a second petition for modification and appel-lees responded with a counter-petition. At the hearing held on those petitions it was established that appellant’s new husband, Richard Brandon, owns and operates a…1 / 2