383 So. 2d 274

Rosalie J. WALFISH, Appellant, v. Richard WALFISH, Appellee.

No. 79-1836.

District Court of Appeal of Florida, Third District.

May 6, 1980.

*275Engel, Aronson, Fried & Cohn, Miami, for appellant.

Gus Efthimiou, Jr., Miami, for appellee.

Before HENDRY, NESBITT and BAS-KIN, JJ.

BASKIN, Judge.

This appeal challenges the decision of the trial court which changed custody of the two minor children of the parties from the mother to the father. We find the record does not support the change of custody as a matter of law and reverse.

When the marriage of the parties was dissolved in 1973, the mother was awarded custody of their two daughters. Six years later, the father filed a petition for change of custody of the two children then aged eight and ten.

During the evidentiary hearing on the petition for change of custody, the father presented the testimony of a psychologist who had examined the children and interviewed the parents. This psychologist testified that the children had expressed a desire to live with their father, but the doctor specifically stated that the mother had committed no overt act which would render her unfit. Unfortunately, the psychiatrist who had been treating the children was not available to testify at the evidentiary hearing.

Both parents presented testimony of neighbors and relatives. Those persons testifying on behalf of the father averred that, on occasion, the mother’s home had been dirty and that the children had been unkempt. They also testified that the father was a good parent and took good care of the children when they visited him. Friends and family of the mother, on the other hand, testified that she was a good and concerned parent.

As a prerequisite to a change in custody, petitioner must prove a substantial change in circumstances.

[A] decree may not be substantially amended or changed thereafter, except upon a showing of materially altered conditions arising subsequent to the entry of the decree or of material facts bearing on the question of custody which were in existence at the time of the decree but were unknown to the court on the date of its entry. And even in such cases a substantial amendment or change in the decree should not be made except for the welfare of the child.

Sayward v. Sayward, 43 So.2d 865, 868 (Fla.1949). The trial court does not have the same degree of discretion to modify custody *276as it does to enter an original , decree. Jacobs v. Ross, 304 So.2d 542 (Fla. 3d DCA 1974); Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967).

The testimony presented to the trial court disclosed that the father was a fit parent, but it failed to show that the mother was unfit or to establish that a change, of custody was required to further the best interests of the children.1 The trial court, therefore, abused its discretion in ordering the change of custody. Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976); Hutchins v. Hutchins, 220 So.2d 438 (Fla. 2d DCA 1969); and Nixon v. Nixon, 209 So.2d 878 (Fla. 3d DCA 1968).

The order of the trial court is reversed and the cause is remanded for further proceedings in accordance with this decision.

Walfish v. Walfish
383 So. 2d 274

Case Details

Name
Walfish v. Walfish
Decision Date
May 6, 1980
Citations

383 So. 2d 274

Jurisdiction
Florida

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