Opinion
January 29, 1952. Rehearing Denied February 23, 1952.
Paty Paty, West Palm Beach, for petitioner.
James Nemec, West Palm Beach, for respondent.
This is a petition for writ of certiorari attacking two orders modifying a final decree of divorce entered on September 1, 1950.
In the decree of divorce the Chancellor referred to a separation agreement between the parties, dated the 25th day of August, 1950, which was in evidence, and said: "* * * and the same is hereby ratified, approved and confirmed; and that the parties hereto be, and they are hereby, ordered and directed to carry out the terms and provisions thereof; * * *".
The agreement referred to in the decree of divorce contained the following:
"* * * The Husband and Wife shall continue to live separate and apart from each other and may so live at such place or places as each for himself or herself may decide and neither of them shall disturb, molest, hinder or interfere with the other in any manner, or sue, disturb, intrude upon or molest any person for receiving or harboring the other.
"The Wife shall have the care and custody of each of the children subject to the right of reasonable visitation on the part of the Husband, and subject to the right of the Husband to have said children visit with him in his home at such times as such visits shall be consistent with the reasonable welfare of said children. * * * Neither party to this agreement without the written consent of the other shall remove said children, or either of them, from the limits of the United States of America. * * *"
The son was born June 23, 1939, and a daughter was born July 20, 1941.
In addition to confirming the separation agreement above mentioned, the Court in its final decree said: "Ordered, Adjudged and Decreed that the care, custody, and control of the minor children, to-wit: William N. Kelley and Ginger Kelley, be, and the same is hereby awarded to defendant, Will N. Kelley, subject to the right of reasonable visitation on the part of the plaintiff, Oscar L. Kelley, as set forth in said agreement: * * *".
On September 25, 1951, on the petition of the respondent for modification of said final decree, the Court ordered that the children should visit the respondent's home beginning on the second and fourth Saturdays of each month, and ending the following Sunday at 6:00 o'clock and during the summer vacation the respondent should have the children for a period of three weeks.
On the same date this order was made the petitioner here filed a petition before the Chancellor for a modification of the order of September 25, 1951, in which she alleged under the terms of the final decree, she was granted complete care, custody and control of the minor children, with the right of the respondent to have reasonable visitation and to have the children visit his home; that she desired to sell her home and move her domicile to South Carolina where she would be near her father.
On the 16th of October, 1951, the Chancellor made an order providing that upon the moving by the petitioner of her domicile from an area of within 100 miles of the City of West Palm Beach, the father should have the right to visit the children in his home from June 10th to August 20th of each year, and that he be relieved of the payments to his wife for the support and maintenance of the children during that period, and that the respondent be responsible for transporting the children from the mother's domicile to his home at the beginning of said period, and the mother shall be responsible for transporting the children from the father's home to the mother's home at the end of the summer vacation period.
The last order of the Chancellor, dated October 16, 1951, is in effect an order for divided custody of the minor children. It places the actual custody of the children with the father for a period of 2 months and 10 days during the summer vacation. There is a vast difference between divided custody and reasonable visitation.
In entering these two orders the Chancellor departed from the essential requirements of the law and principles heretofore established in this State with reference to the care and custody of children. In the case of Jones v. Jones, 156 Fla. 524, 23 So.2d 623, we held that a decree awarding permanent custody of the children to the mother, operated as a final determination of all material facts then existing and the decree should not be materially changed thereafter except upon a showing that such new conditions had arisen as would justify a change, or that old facts had come to light which had they been known to the Chancellor, would have impelled him to exercise a reasonable discretion to have entered a different decree.
The facts as to the fitness of the parents were the same at the time of the entry of the orders modifying the final decree as they were at the time of the final decree. The only changes in circumstances are that the divorced husband has now married a lady who was the former "baby sitter" for these two minor children, and the divorced wife plans to remove her domicile to South Carolina where she will be near her own people and her father. The final decree under the law granted to each of the parties the right to remarry and specifically granted to each of the parties the right to live where either of them should desire. The only prohibition in the separation agreement, or the final decree with reference to the domicile of the children was that they should not be removed from the United States.
There should be no modification of the decree as to the amount to be paid for the care, support and maintenance of the children during the time of visitation, or with reference to the expense of transportation in order for them to be with the father.
A petition for attorneys' fees has been filed in this cause and is supported by affidavit as to what would be reasonable. The Court finds that the sum of $500 for the services of the petitioner's solicitors in prosecuting this petition and appearing at the bar of this Court is reasonable, and the respondent is ordered to pay such sum to the solicitors for the petitioner. See Monyak v. Monyak, Fla., 43 So.2d 903.
The writ of certiorari is granted and the two orders entered herein dated September 25, 1951, and October 16, 1951, be and the same are hereby quashed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.