Clem v. Clem

GOODING, MARION W., Associate Judge.

The appellee, plaintiff in the lower court, brought a suit for divorce against the appellant, defendant in the lower court, praying for a divorce and for custody of the minor child of the parties. The defendant filed an answer and counterclaim also seeking a divorce and custody of the minor child.

The lower court rendered its judgment of divorce for the plaintiff and awarded custody of the minor child to the plaintiff.

The defendant filed a petition for rehearing and upon the court’s order denying said petition, appeal was taken to this court.

The points raised on appeal relate solely to the question of the sufficiency of the evidence to support awarding the custody of the minor child to the plaintiff.

This is a rather typical divorce suit in which the testimony is conflicting. However, the record reveals that there is substantial evidence to support the findings of the trial court. The appellate court will not substitute its judgment for that of the trier of the facts unless there be a clear and unmistakable showing of the abuse of judicial discretion and that the conclusions reached are erroneous. Grant v. Corbitt, Fla.1957, 95 So.2d 25; Rudolph v. Rudolph, Fla.App.1962, 146 So.2d 397; Harrison v. Harrison, Fla.App. 1964, 165 So.2d 235.

The evidence sustains the findings of fact and conclusions of the law that the custody of the minor child should be with the plaintiff, and the appellant has failed to show that the trial court’s action constituted an abuse of discretion. The judgment appealed should be and is affirmed.

REED and OWEN, JJ., concur.