Harris v. Harris , 65 Fla. 50 ( 1913 )

Shackleford, C. J.

The appellant in a suit for divorce, upon the ground of wilful, obstinate and continued desertion for a period of one year, by the appellee, was awarded the following decree:

“This cause coming on to be heard upon the Special Master’s report, and it appearing that there is no testimony save the sworn testimony of the complainant in her behalf and the sworn testimony of Mrs. Laura J. Eames, and Raleigh C. Dowling, and it appearing that the complainant has proven the allegations of her bill of complaint, therefore, it is considered, adjudged and decreed that the matrimony, now and heretofore existing between the complainant, Jessie O. Harris, and the respondent, William S. Harris, be forever dissolved and annulled a vinculo matrimonii.

It is further ordered, adjudged and decreed that the complainant, Jessie O. Harris, shall have the exclusive care, keeping, custody and control of the minor child, Richard Wesley, until he is twenty-one years of age, or until the further orders of this court, and further, William S. Harris, the father of said minor child, Richard Wesley, shall be allowed to visit said child at such times and places as may be convenient and reasonable, and the said minor child shall be allowed to visit its father, the said William S. Harris, one day in each week, and spend one week in each year with the said father, until it shall become twenty-one years of age, or until the further orders of this court.

It is further provided, ordered, adjudged and decreed, that if the character of either the father, William S. Harris, or the mother, Jessie O. Harris, of said- minor child, shall become disreputable, and unfit to have the care, custody or control of said child, or if their treatment to said child becomes other than parental, then they shall forfeit or lose all their rights, powers and privileges granted in this decree, and said rights, powers and privileges heretofore belonging to said party shall revert to the other.

Done, ordered, adjudged and decreed at Chambers in the City of Jacksonville, Duval County, State of Florida, on this 23rd day of August, A. D. 1911.

E. M. Call, Judge.”

On the 16th day of August, 1912, a petition was filed by the appellee, entitled in such cause, wherein he alleged, among other things, that the appellant had violated the terms of the decree in certain specified respects and was also an unfit person to have and retain the custody of the child, the grounds thereof being particularly set forth, but which we do not think it advisable to copy in this opinion. A motion to strike this petition from the files upon certain specified grounds, which we deem it unnecessary to set out, was denied and the appellant ordered to answer the petition by a certain .named day. From this order the appellant has entered her appeal. It is contended that a petition was not the proper remedy and that the Circuit Court was without the power to make such order. There is no merit in this contention. It is settled adversely to the appellant in McGill v. McGill, 19 Fla. 341, and we fully, approve of what is said therein. See also the authorities therein cited; 14 Cyc. 810; 7 Ency. of Pl. & Pr. 132, and the respective notes appended thereto. The order appealed from is affirmed.

Taylor, Cockrell, -Hocker and Whitfield, J. J., concur.