Opinion
January 31, 1950. Rehearing Denied February 17, 1950.
Dowda Millican, Thos. B. Dowda, Harriette C. Pomeroy, Palatka, and Evan T. Evans, Jacksonville, for Petitioner.
Gray, Waldo, Chandler Mills, Gainesville, for Respondent.
Pertinent provisions of a final decree entered by the Circuit Court of Alachua County, Florida, on March 7, 1949, in the case of Ethel W. Lee v. Frank A. Lee held: First, the equities of the cause were with the plaintiff (Ethel W. Lee); second, Ethel W. Lee was divorced from Frank A. Lee; third, the custody of Patricia Ann Lee and James Green Lee, children of the parties, was awarded to the plaintiff mother, Ethel W. Lee; fourth, "that the defendant, Frank A. Lee, is herein and hereby granted the right of reasonable visitation with said children at reasonable hours and he is, until the further order of this Court, herein and hereby granted the right to have said children with him on every Sunday afternoon between the hours of 2:00 and 7:00 o'clock p.m., said right to include the privilege of taking said children away from their home; fifth, paragraph five of the final decree, supra, referred to and made plaintiff's Exhibit "I", being a property settlement agreement signed by the litigants, was ratified and approved and by reference made a part of the final decree. The petition for interlocutory certiorari refers to paragraph 5 of the stipulation attached to the amended bill of complaint and the following language thereof: "5. That the wife shall have complete custody and control of the two minor children born of the marital union of the parties, said children being named Patricia Ann Lee, a girl, one year and 7 months of age; and James Green Lee, a boy 9 months of age; subject however, to the privilege of visitation of said children by the husband during reasonable hours;" seventh, the Court retained jurisdiction to make and enter subsequent orders in the cause authorized by law.
On April 29, 1949, Frank A. Lee filed in the Circuit Court of Alachua County, Florida, his motion for a modification of the final decree originally entered in the cause under date of March 7, 1949. He alleged (1) that Ethel W. Lee was an unfit person to have the custody of the children; (2) she had not cared for the children in a decent, orderly and proper manner; (3) that Ethel W. Lee had stated that she did not like the terms of the final decree and did not intend to comply with its provisions; (4) the father was subjected to abusive language by the different members of the household, where the children were kept by the mother, when he called for them on each Sunday, as provided for in the final decree; (5) the health of the children was endangered in their maintenance by Ethel W. Lee; (6) Ethel W. Lee had stated that she intended to leave Gainesville with the children for the purpose of defeating visitation priviliges provided the father in the final decree; (7) Ethel W. Lee was an unfit and improper person to have the custody of the children. Testimony was taken by the parties, as shown by the record, on the above motion for a modification of the original decree.
The Chancellor below, under date of November 25, 1949, modified the final decree dated March 7, 1949, by enlarging the visitation privilege of the father with his two children "from 2:30 P.M. on Friday to 6:00 P.M., on Sunday, every other week, beginning Friday, December 2, 1949". The modified decree further required the mother to deliver the children to the father at some convenient place in Gainesville designated by the father; the father likewise was required to return the children to the mother at the front door of her home not later than the hour of 6:00 p.m. The court below retained jurisdiction of the parties and the subject matter of the suit, to-wit, the children, their custody, support and welfare, for further appropriate orders authorized by law. The mother, by petition for writ of certiorari, prays for an order of this Court quashing the modified order of the Chancellor dated November 25, 1949.
The visitation privilege on the part of the father with his children is recognized by the stipulation of the parties and the original and amended decrees. Such visits by the father as we construe the agreement and decrees, is that they must be at "reasonable hours". The reasonableness or convenience of each proposed visit could be determined by a telephone call by the father to the mother. If visitation privileges are denied the father by the mother because of arbitrary or capricious conduct, then the same can or may be adjudicated in a contempt proceeding. The only limitation of the father in his visits with the children is that he must visit them at "reasonable hours". The original decree grants the privilege of the father to have his children each Sunday afternoon from the hours of 2:00 to 6:00. The terms and provisions of the decree as they apply to each party may be enforced in an appropriate contempt proceeding.
It will be observed that the older child is less than three and the younger is around eighteen months of age. These children require a mother's care now more than any other period in their lives. The mother is best fitted to bestow affection, care, companionship and early training required by these infants. It is doubtful, in the very nature of things, if the father, regardless of his devotion, could adequately care for them during emergencies which frequently develop unexpectedly in the lives of children. Such an emergency may occur from Friday to Sunday bi-weekly, to the detriment of the infants. See Hurst v. Hurst, 158 Fla. 43, 27 So.2d 749.
The petition for interlocutory writ of certiorari is granted and the modified order dated November 25, 1949, is hereby quashed.
ADAMS, C.J. and THOMAS and HOBSON, JJ., concur.