Opinion
No. V-418.
February 18, 1976.
Appeal from the Circuit Court, Escambia County, Ernest E. Mason, J.
Paul L. Cummings, Pensacola, for appellant.
Alan H. Rosenbloum and Robert J. Mayes, of Levin, Warfield, Graff, Mabie Rosenbloum, Pensacola, for appellee.
Oral argument in this case was initially heard by a panel of this Court consisting of Judges Rawls, Johnson and Mills. An opinion authored by Judge Johnson was filed on June 16, 1975. In that opinion Judge Mills concurred and Judge Rawls concurred in part and dissented in part. Appellant thereafter filed a petition for rehearing.
Effective July 1, 1975 Judge Johnson retired as a Judge of this Court.
Judge Johnson having retired, as aforesaid, Judge Boyer was substituted in his place and stead as a member of the three-judge panel (see Sec. 4(a), Art. V, Constitution of the State of Florida) for consideration of the petition for rehearing. Upon consideration of that petition Judges Rawls and Boyer determined that it was well founded, Judge Mills being of the view that the petition should be denied. Rehearing was granted and this case was orally argued for a second time before Judges Rawls, Boyer and Mills on October 1, 1975.
The facts and issues of this case have been sufficiently recited in our opinion which, because of our improvidently issued mandate, has already been published and reported. ( Avery v. Avery, Fla.App. 1st 1975, 314 So.2d 198) No useful purpose will be served by repetition here. Upon reconsideration we recede from that portion of the opinion wherein we stated:
"We do not deem these circumstances sufficient to justify a modification of the custody provisions of the final judgment." (314 So.2d 200)
and determine instead that the facts recited demonstrate a material and substantial change in conditions and circumstances such as to have justified the modification order of the trial judge awarding custody of the two minor children to the appellant-father. In any child custody proceeding, the welfare of the child is the prime consideration. ( Dinkel v. Dinkel, Sup.Ct. Fla. 1975, 322 So.2d 22) It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child and an appellate court should not reverse the trial judge's findings absent a showing of abuse of discretion. ( Dinkel v. Dinkel, supra)
As to the issue regarding the award of the mobile home to the appellee-mother, we adhere to our prior opinion.
That portion of the order here appealed awarding the custody of the two minor children to the appellant-father is affirmed. That portion of said order awarding the mobile home to the appellee-mother is reversed. Our prior opinion reported at 314 So.2d 198 and our mandate dated July 2, 1975 are modified and amended in accordance herewith.
It is so ordered.
BOYER, C.J., and RAWLS, J., concur.
MILLS, J., dissents.
I dissent. I adhere to the majority opinion reported in Avery v. Avery, 314 So.2d 198 (Fla.App. 1st, 1975).