Opinion
March 28, 1952. Rehearing Denied April 22, 1952.
Appeal from the Circuit Court, Nassau County, Claude Ogilvie, J.
John L. Nixon and John B. L'Engle, Jacksonville, for appellant.
Zach H. Douglas and Charles A. Powers, Jr., Jacksonville, for appellee.
Wiley F. Wingo and wife, Bernice D. Wingo, were married on May 16, 1926, and three children were born to the marriage to wit: Dorothy Ann Wingo, Amy Ruth Wingo and Clara Jean Wingo. The parties lived together as husband and wife until November, 1946, when they separated and the husband, on February 5, 1947, obtained from his wife a divorce. The final decree so entered awarded to the husband and father the exclusive custody of the three minor girl children, with visitation privileges to the mother. Some thirteen days after the entry of the divorce decree Bernice D. Wingo, when approximately 38 years of age, married Billie J. Belue, then about 27 years of age. Dorothy Ann Wingo, since the entry of the divorce decree on February 5, 1947, married C.L. Ledford, Jr.
In December, 1946, Wiley F. Wingo and wife, Bernice D. Wingo, prior to the entry of the divorce decree, entered into a written marriage agreement and one of the terms thereof provided that the written marriage agreement should be observed in a divorce decree, should such a decree ever be entered. Pertinent provisions as agreed to are viz.:
"1. The parties hereto shall hereafter live apart and neither one will molest or interfere with the other.
"2. The home of the parties purchased in the joint name of the husband and wife and situated at Hilliard, Florida, and legally described as follows: (Description here omitted) together with the furnishings therein shall be used and occupied by the husband.
"3. In the event the decree is entered divorcing husband and wife, the parties hereto agree that they will convey the aforesaid property to their children, namely Dorothy Ann Wingo, Amy Ruth Wingo and Clara Jean Wingo, share and share alike.
"4. The husband shall have the exclusive custody of said children and the wife shall be allowed to visit them at all convenient times.
"5. The wife agrees that in the event an action for divorce is instituted by the husband she will make no claim or demand upon him for alimony or support monies.
"6. This agreement shall be made a part of any final decree of divorce rendered between the parties or appropriate reference shall be made in such final decree."
It appears by the record that Wiley F. Wingo lived with his three daughters in the home situated at Hilliard after the entry of the divorce decree. The eldest daughter, Dorothy Ann Wingo, thereafter married C.L. Ledford, Jr., and in the early portion of 1949 Wiley F. Wingo died. Dorothy Wingo Ledford, after her father's death, provided a home for a short period of time for her two minor sisters, but, because of conditions and circumstances beyond her control, it was necessary to obtain for the two children a home elsewhere. A home for Clara Jean Wingo and Amy Ruth Wingo, after some two or three applications, was obtained at the Baptist Home for Children at Jacksonville, Florida. It appears by the record that Wiley F. Wingo, the father, made an unsuccessful effort prior to his death to get his two minor daughters in the Baptist Home, but Dorothy, the eldest daughter, after her father's death, was successful in getting the Baptist Home to accept the children.
On August 30, 1949, counsel for the respective parties entered into a stipulation to the effect that Clara Jean Wingo and Amy Ruth Wingo, minors, would be placed in full care, custody and control of the Baptist Home for Children, in Jacksonville, pending determination of questions in controversy between the litigants, in order that said children might pursue their studies in their respective schools. The exact ages of the children are not clear from the record, but apparently the older child is about fifteen, while the younger one is two or three years her junior. They are now attending the public schools of Duval County and the older girl expects to graduate in two or three years and is receiving musical training.
The record reflects that Bernice Wingo Belue, since her second marriage, has had continuous employment in one of the business houses in the City of Jacksonville and her hours each week are from 9:15 A.M. until 5:30 P.M., and she earns approximately $25 per week. The husband, Billie J. Belue, has similar employment, with a weekly salary of approximately $50. The couple purchased and are now paying for, under a G.I. Plan, a six-room bungalow situated in the City of Jacksonville. It is comfortably furnished and has three bedrooms. The home is not fully paid for. Bernice Wingo Belue, the mother of the minor children, regardless of the previous written agreement by her signed with her former husband and father of the two girls, as well as the terms of the divorce decree, contends that she should be awarded the custody of the minor children rather than permit them to remain in the Baptist Home for Children.
On April 6, 1949, Dorothy Wingo Ledford, by petition filed in the County Judge's Court of Nassau County, Florida, represented to the Court that Clara Jean Wingo and Amy Ruth Wingo were minor children and heirs of Wiley F. Wingo, deceased. That the minor children, as heirs of their father, owned an interest in property situated in Nassau County, Florida, as well as in property located in Laurens, South Carolina, and the interest of the minor children in said property would be advanced if a guardian therefor was appointed, as provided by law. That Dorothy Wingo Ledford is the eldest daughter and sister of the two minors. That the father, Wiley F. Wingo, during his last illness and shortly prior to his death, requested that the eldest daughter be appointed as guardian of the property or estate and persons of the two minors. An order appointing Dorothy Wingo Ledford such guardian was entered by the County Judge of Nassau County under date of April 6, 1949. Letters of guardianship issued thereafter.
On October 3, 1949, Bernice Belue filed a petition in the County Judge's Court of Nassau County and represented that she was the mother and only surviving parent of the two minor children and as such was their natural guardian. That letters of guardianship for the minors had issued out of said Court without notice or the right to oppose the same by the mother and natural guardian. She prayed in the petition that the letters of guardianship previously issued to Dorothy Wingo Ledford for the estate and persons of the minors be revoked, set aside and held as naught. The petition was later amended and set for the age of Clara Jean Wingo as ten and Amy Ruth Wingo as thirteen when the amendment was filed on November 26, 1949. The amendment further set out that the petitioner and husband were living in their home, which was situated in a good neighborhood in the City of Jacksonville, and within easy walking distance of Junior and Senior High Schools. That the mother is the natural guardian of the minors and their only surviving parent, and for these reasons the appointment by legal preference should be given to the mother. An answer thereto was filed by Dorothy Wingo Ledford and attached thereto and made a part by reference was a copy of the entire proceedings for divorce between Bernice Wingo and Wiley F. Wingo as previously had in the Circuit Court of St. Johns County, Florida. As the writer studies the record, no efforts were made by counsel to simplify or restrict the issues made by the petition and answer, as amended, and the testimony adduced thusly covered a broad field of activity of the respective parties.
From all the evidence adduced by the respective parties on the issues made by the pleadings the County Judge made findings of fact to the effect that Dorothy Wingo Ledford was a fit and proper person to act as such guardian and that the interests of the minors would be best served by the continuance as guardian of the minors. It was further ordered that the petition, as amended, praying for a revocation thereof as filed by the natural mother, Bernice Belue, and upon which testimony was taken, be denied by an order of said Court under date of May 16, 1950. Bernice Wingo Belue appealed therefrom to the Circuit Court of Nassau County, Florida.
On Appeal the Circuit Court of Nassau County entered an order affirming the order of the County Judge's Court and recited therein reasons for the conclusions reached. An appeal therefrom has been perfected to this Court. It is established law in reviewing cases on appeal that this Court is concerned with the order appealed from rather than the reasons given or advanced for the conclusions reached and expressed in the order challenged on appeal. Section 746.04, F.S.A., provides: "Jurisdiction and Proceedings for Removal. — Proceedings for removal may be instituted by the County Judge on his own motion or by any surety or other interested party. A petition for the removal of a guardian must be sworn to and filed in the office of the County Judge having jurisdiction of the guardianship at the time the petition is filed. * * * Upon the hearing the County Judge may enter such order as he deems proper under the pleadings and the evidence." Section 746.15. F.S.A. provides that appeals shall be controlled or governed as set forth in Chapter 732, F.S.A., being the law applicable to appeals in probate.
We have studied the record, examined the authorities cited, heard oral argument at the bar of this Court and it is our view and conclusion that reversible error has not been made to appear.
Affirmed.
SEBRING, C.J., MATHEWS, J., and PARKS, Associate Justice, concur.