Mosca v. Mosca

Full title: JERRY MOSCA, APPELLANT, v. TRESSIE FAYE MOSCA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Sep 11, 1962

144 So. 2d 80 (Fla. Dist. Ct. App. 1962)

Opinion

No. 62-186.

September 11, 1962.

Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.

Daniel Neal Heller, Miami, for appellant.

Irving M. Wolff, Miami, for appellee.

Before PEARSON, TILLMAN, C.J., and HORTON and BARKDULL, JJ.

PER CURIAM.

The appellant-husband seeks review of a final decree of divorce, in which the custody of the minor children of the parties was granted to the appellee-wife. The appellee has cross-assigned error in the failure to award her a divorce upon her counterclaim or, in the alternative, to award a divorce to both parties.

There is competent evidence to support the award of custody by the chancellor and no unreasonableness or abuse of discretion on his part has been demonstrated and, therefore, the error assigned by the appellant is found to be without merit. See: Dworkis v. Dworkis, Fla.App. 1959, 111 So.2d 70, 72 A.L.R.2d 1189.

The appellee has failed to demonstrate any error in the awarding of the divorce to the husband and it would have been erroneous for the chancellor to have awarded a divorce to both parties. See: Friedman v. Friedman, Fla. 1958, 100 So.2d 167.

Therefore, the final decree of divorce is affirmed in all respects.

Affirmed.

PEARSON, TILLMAN, Chief Judge (dissenting).

It is my view that the award of custody contained in the final decree should be reversed and the cause remanded for a retrial of that issue because of error prejudicial to the appellant-father, in that the chancellor mistakenly rejected competent evidence as to the fitness of the appellee-mother to have custody of the minor children. It is axiomatic that the prime concern of a court in determining custody is the welfare of the children.

While a father may be estopped to present evidence as to premarital conduct of a wife upon the issue of divorce, it does not follow that this principle of estoppel should be applied to a situation involving the welfare of the children. The State has an interest in the well-being of the children in this case which transcends the rights of the parties and their dealings with each other.

I think the evidence proffered had a direct bearing upon the fitness of the appellee to have custody of the children and directly affected their welfare. As such it should have been heard and considered by the chancellor. Cf. Blue v. Blue, Fla. 1953, 66 So.2d 228.