LeMoine v. Ailes

PER CURIAM. This is an original action in habeas corpus whereby petitioner, Martha Ailes Le-Moine, charges that the custody and possession of her minor son, Robert Darrell LeMoine, is being illegally and wrongfully withheld from her by her parents, the respondents herein. Based upon the petition filed by her in this cause, a rule nisi was issued and served on the respondents directing them to show by what lawful authority they detained and withheld custody of the minor child from the petitioner. Based upon respondents’ return to the rule nisi, the Honorable Sam S. Smith, Circuit Judge of the Third Judicial Circuit of Florida, was appointed a Commissioner of this Court to hold a hearing for the purpose of taking testimony and receiving evidence on the issues made by the petition and return of respondents, and thereafter to file in this cause his report and recommendations in the premises. An extended hearing was held by the Commissioner pursuant to this Court’s directions, and a transcript of the testimony adduced by the respective parties has been filed in the cause. By his report the Commissioner found that petitioner was a fit and proper person to continue enjoying the possession, care, and custody of her child as awarded to her by a final judgment of divorce rendered by the Circuit Court of Duval County on May 24, 1966, in Case No. 65-6061, which custody order has not been modified, rescinded, or set aside by any subsequent proceedings therein. The Commissioner further found that although the respondents were likewise fit and proper persons to have the care and custody of the minor child, they had nevertheless failed to carry the burden of establishing that petitioner was not an equally fit and proper person to enjoy the award of custody heretofore granted her by a court of competent jurisdiction. We have carefully reviewed the record of the proceedings and find that the Corm missioner’s report and recommendations are sustained in all material respects. The Court therefore concludes and so holds that petitioner, as the natural mother of the minor child involved herein, is entitled to and shall forthwith be delivered the possession, custody, and control of Robert Darrell LeMoine by the respondents, Robert Lewis Ailes and Martha Eloise Ailes, which custody petitioner shall be entitled to retain until changed or modified by a further order of a court of competent jurisdiction. SPECTOR, C. J„ and WIGGINTON and CARROLL, DONALD K., JJ., concur.