Opinion
June 8, 1951. Rehearing Denied July 6, 1951.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Chertkof Kalish, Miami, for appellant.
Sibley Davis, Miami Beach, for appellee.
This is a child custody case in which both parents seek full custody of their nine-year-old son. The Chancellor heard the testimony of the parties, including that of the son, and entered a decree in favor of the father, from which the mother has appealed.
The final decree, after awarding the full custody of the child to the father during this and future school terms, specifically accorded to the mother the right to visit the child at reasonable and convenient times, and as frequently as she should desire, and deferred until the expiration of the present school term a determination as to which of the parties should be entitled to the custody of the child during the vacation period, this being done "for the purpose of according the parties time and opportunity to discuss and agree, if possible, on such decretal provisions as shall best serve and promote the welfare of their child."
In an opinion, clearly and succinctly written and showing a broad and sympathetic understanding of the problem here involved, the Chancellor set forth the facts and his reasons for decreeing in the father's favor. This opinion is as follows:
"John Charles Girtman, Jr., is nine years of age. His father, the defendant herein, was divorced from his mother, the plaintiff here, November 2, 1945. From that time to this date the mother has had legal custody of the child. She surrendered actual custody, because of illness and other reasons, to the father January, 1949, and this status has continued to the present time.
"This case is before me on the father's petition for modification of the final decree to award him full and complete custody of his son. Since the divorce between these parties the father has remarried and the mother has remarried twice, her second marriage being an unfortunate interlude and the less said about it and its tragic facts, the better it will be for everyone concerned.
"Her present husband is a fine outstanding gentleman and prominent physician of New Orleans, Louisiana, father of two children of his own, the mother of whom died several years ago. He married the mother of John Charles Girtman, Jr., September 1949, and they are extremely happy together, which is also true of the marital status of the father of the child, the present Mr. and Mrs. Girtman.
"Sad to relate, however, that neither of these women by reason of physical misfortune can have any more children.
"There is little to choose between the two couples. The boy would fare equally well with one as with the other.
"The testimony of John Charles Girtman, Jr., and the manner in which he gave it before the court was most illuminating and deeply impressive. He is an extremely brilliant and highly intelligent child. He is the fairest witness that has ever appeared before this court. Moreover, he is a gentleman.
"He loves his father. He loves his mother. He loves his stepmother. The balance of the scales are almost equal in this contest. They tip ever so slightly in favor of the father, because as John Charles Girtman, Jr., testified, he is happy in the company of either parent, except he was tired of being moved around from place to place and from school to school.
"The mother can now offer the child (something which she has been unable to do since her divorce from Mr. Girtman in 1945), a comfortable and loving home in New Orleans, Louisiana. There he would have the company of two younger children of his mother's third husband. He would receive love and affection and everything else that goes with normal rearing in a normal home. It appears that his mother has at last found a haven of security, surrounded by an aura of happiness, love and affection, something which she failed to achieve prior to this marriage.
"The father has ample means, not only from his practice as an attorney, but also from private holdings, to give the boy everything necessary for his health and happiness. And as the father stated it would be a bit difficult not to give him too many of the luxuries of life. He is being taught, however, the value of money, thrifty habits and is being reared in a normal and sensible manner.
"He has now been in the custody of his father (with the consent of his mother) a little less than two years. His roots are firmly planted. He has finally stayed long enough in one place to accumulate playmates and friends. He is doing well in school. Every indication points to maintaining his present status and this in no way should be a reflection on his mother or her present situation. As John Charles Girtman, Jr., testified, I do not want (him) to be changing schools every year.
"This is the situation. The petition of the father should be granted with the provision for reasonable visitation by the mother. The disposition of the custody of John Charles Girtman, Jr., for the summer months should be held in abeyance until that time arrives for the sole purpose of allowing the feelings of the parties at the present time to subside; after which they both can approach this court for the solution of the problem in a manner conducive to the best interest of the boy.
We think that this opinion clearly shows that the Chancellor's prime concern in awarding the custody of the child during the school year to the father was the welfare of the child; and, his decision being sustained by ample credible testimony, we are not authorized to disturb it. See Mehaffey v. Mehaffey, 143 Fla. 157, 196 So. 416, and cases therein cited.
For the reasons stated, the final decree should be and it is hereby
Affirmed.
SEBRING, C.J., TERRELL, J., and PARKS, Associate Justice, concur.