Demaso v. Demaso

345 So.2d 391 (1977) Ellen DEMASO, Appellant, v. James Frederick DEMASO, Appellee. No. 76-690. District Court of Appeal of Florida, Third District. May 3, 1977. Preddy, Haddad, Kutner & Hardy and Glenn P. Falk, Miami, for appellant. Norman A. Share and Thomas A. Tilson, Homestead, for appellee. Before BARKDULL, HAVERFIELD and HUBBART, JJ. PER CURIAM. Petitioner, Ellen Demaso, appeals that provision of a dissolution of marriage judgment awarding custody of the parties' eight year old son, Anthony, to the father, James Demaso. Ellen contends the trial judge erred in awarding custody of Anthony to his father because there was no finding that she is unfit and all factors being equal, the mother of infants of tender years should receive prime consideration for custody. See Anderson v. Anderson, 309 So.2d 1 (Fla. 1975). It is the duty of the trial judge in a child custody proceeding to determine *392 what is in the best interest of the child and absent a showing of an abuse of discretion (which requires a lack of substantial evidence to sustain the judge's determination), an appellate court will not disturb the custody award. Ross v. Ross, 321 So.2d 443 (Fla.3d DCA 1975) and cases cited therein. There was substantial competent evidence presented in this case to support the award of custody to the father and we find no abuse of discretion. On cross-appeal James Demaso urges as error the award of an attorney's fee to Ellen based solely on two affidavits without any prior notice of hearing or any hearing conducted thereon. We find this point well taken and reverse the attorney's fee award. No hearing was held or testimony adduced on the issue of attorney's fees, thereby precluding James his right to contest Ellen's claim to such fees. See Thoni v. Thoni, 179 So.2d 420 (Fla.3d DCA 1965); Goldblatt v. Goldblatt, 277 So.2d 34 (Fla.3d DCA 1973); Reek v. Reek, 303 So.2d 677 (Fla.4th DCA 1974). The cause is remanded to the trial court for the taking of testimony on the issue of attorney's fees. Affirmed in part, reversed in part.