Burnsv.Carricarte

Supreme Court of FloridaSep 28, 1976
336 So. 2d 1171 (Fla. 1976)

No. 47922.

April 14, 1976. Rehearing Denied September 28, 1976.

Writ of Certiorari to the District Court of Appeal, Third District.

Paul A. Louis and Neil A. Shanzer, Sinclair, Louis Siegel, Miami, for petitioner.

Julius H. Erstling, South Miami, for respondent.


Certiorari was granted in this cause on apparent conflict between the instant decision of the District Court of Appeal, Third District, reported at 314 So.2d 820 (Fla. App.3d 1975), and McGuire v. McGuire, 140 So.2d 354 (Fla.App.2d 1962); In re Brown, 246 So.2d 166 (Fla.App.3d 1971); Keller v. Keller, 308 So.2d 106 (Fla. 1974), and Hosking v. Hosking, 318 So.2d 559 (Fla.App.2d 1975).

The trial court rendered an extensive custody order subsequent to a marriage dissolution of the parties. The District Court affirmed per curiam without opinion. We issued the writ and have heard argument of the parties. After hearing argument, and upon further consideration of the cause, we find that the factual situation is unique and distinguishable from the cases cited for conflict and there is no reported opinion that requires harmonization with existing law. Accordingly, the writ heretofore issued is discharged.

OVERTON, C.J., and ROBERTS, ADKINS, BOYD, ENGLAND and HATCHETT, JJ., concur.

SUNDBERG, J., concurs with an opinion, with which ADKINS, BOYD and HATCHETT, JJ., concur.


I believe that there is conflict in decision between this case based on record proper and McGuire v. McGuire, 140 So.2d 354 (2d D.C.A.Fla. 1962). It is clear to me from the trial court's Order Determining Permanent Custody that it reviewed and considered confidential school records of the Good Shepherd Day Care Center without permitting counsel for the respective parties to examine the records. Counsel were thereby effectively prevented from either cross-examining the contents or presenting testimony to rebut the contents. This was error. However, the trial court made clear that other evidence confirmed the contents of the reports and it is apparent that the judge's decision was amply supported by additional competent evidence. Accordingly, the error was harmless under the peculiar facts of this case and the manner in which the issue of disclosure of the records was presented to the trial court. I, therefore, concur with discharging the writ.

ADKINS, BOYD and HATCHETT, JJ., concur.