IN THE SUPREME COURT STATE OF FLORIDA RESPONDENT S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA JANET B. STROMMEN, n/k/a JANET PUENTES, Petitioner/Former Wife, and Case No.: SC PAUL STROMMEN Respondent/Former Husband. / RESPONDENT S BRIEF ON JURISDICTION LORENA L. KIELY, ESQUIRE Law Office of Lorena L. Kiely 505 E. Jackson Street, Suite 306 Tampa, Florida (813) Fla. Bar No Counsel for the Respondent/FormerHusband

2 TABLE OF CONTENTS Page(s) TABLE OF CONTENTS i TABLE OF CITATIONS ii STATEMENT OF THE FACTS AND OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT I. THE SECOND DISTRICT S REVERSAL OF THE TRIAL COURT S SETTING ASIDE OF THE POSTJUDGMENT CUSTODY AND CHILD SUPPORT ORDERS FOR LACK OF SUBJECT MATTER JURISDICTION DUE SOLELY TO THE FAILURE TO FILE A UCCJA AFFIDAVIT IS NOT IN CONFLICT WITH ANY DECISION OF ANOTHER DISTRICT COURT BECAUSE ONLY THIS CASE ADDRESSED THE FACTUAL CIRCUMSTANCE OF THE ORIGINAL FINAL JUDGMENT BEING ENTERED IN FLORIDA AND THE PLEADINGS ESTABLISHING THE PARTIES AND THE MINOR CHILD CONTINUING TO RESIDE IN FLORIDA. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF CITATIONS Page(s) In re: T.L. v. Dept. HRS, 392 So. 2d 288 (Fla. 4th DCA 1980) 5 Kochinsky v. Moore, 698 So. 2d 397 (Fla. 4th DCA 1997) 4, 6, 7 Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5 th DCA 1984) 4, 6, 8 Nobile v. Nobile, 722 So. 2d 848 (Fla. 1 st DCA 1998) 4, 9 Perez v. Perez, 519 So. 2d 1104 (Fla. 3d DCA 1988) 4, 6-8 Prager v. Mitchell, 651 So. 2d 809 (Fla. 5th DCA 1995) 4, 8-9 Ruble v. Ruble, 884 So. 2d 150 (Fla. 2d DCA 2004) 2, 4 Strommen v. Strommen, 927 So. 2d 176 (Fla. 2d DCA 2006) 2 Walt v. Walt, 574 So. 2d 205 (Fla. 1st DCA 1991) 4, 6-8 Yurgel v. Yurgel, 572 So. 2d 1327 (Fla. 1990) 5 Other Authorities Florida Statute Section Florida Statute Section , 8 Florida Statute Section , 7-9 Fla. Const. Art. V, Section 3(b)(3) 4 Fla. Rule of App. P (a)(2)(A)(iv) 4

4 STATEMENT OF THE FACTS AND OF THE CASE In 1995, the Hillsborough County Circuit Court entered a final judgment of dissolution of marriage dissolving the parties marriage and setting forth a rotating custody arrangement for the parties son, who was then 7 years old. There was no dispute that the parties properly invoked the Hillsborough County Circuit Court s subject matter jurisdiction to enter that final judgment. In the fall of 2000, the Former Husband filed a petition to modify the final judgment, alleging the rotating custody arrangement was no longer tenable and requesting that he be designated the primary residential parent. He specifically alleged he had relocated to north Florida and the Former Wife was living in Clearwater. In February 2001, the Former Wife filed a counterclaim for modification, in which she sought primary residential responsibility. Neither party thought to file a UCCJA affidavit at any time during these proceedings. Neither party sought to dismiss the case for failure to file the UCCJA affidavit nor sought a transfer of venue. Between 2002 and 2003, the Hillsborough County Circuit Court granted the Former Husband s petition, designated the Former Husband the primary residential parent, and required the Former Wife to pay child support. As recently as November 29, 2004, the Hillsborough County Circuit 1

5 Court held the Former Wife was delinquent in her support obligations and entered a judgment against her for about $18,000 for child support arrears and attorney s fees and costs. After having received numerous unfavorable rulings, the Former Wife, on January 17, 2005, filed a motion for relief from judgment pursuant to rule That motion argued the Hillsborough County Circuit Court lacked subject matter jurisdiction over the modification proceedings because no UCCJA affidavit had been filed. Citing Ruble v. Ruble, 884 So. 2d 150 (Fla. 2d DCA 2004), the trial court granted the motion and set aside all of the orders regarding custody and child support entered in the postjudgment proceedings. The Second District reversed and reinstated the orders. Strommen v. Strommen, 927 So. 2d 176 (Fla. 2d DCA 2006). SUMMARY OF THE ARGUMENT This Court should decline to exercise jurisdiction because there is no conflict. The cases the Petitioner asserts are in conflict with the present case are factually distinguishable. None of those cases involved the following factual scenario: a Florida court entered the initial final judgment involving custody and child support and thus had continuing exclusive jurisdiction over the cause absent some event that would have divested the court of 2

6 jurisdiction; no such event had occurred as the pleadings alleged that both parties and the child continued to reside in Florida; and the Former Wife failed to raise the pleading deficiency during the proceedings and on direct appeal of the custody determination. Indeed, in contrast to the present case involving an intrastate proceeding, all of the cases asserted to be in conflict involved a potential interstate custody proceeding because one of the parties resided in a state other than Florida. Because of the factual distinctions, the same question of law is not presented by this case and the asserted cases. Therefore, there is no conflict and this Court should decline to exercise jurisdiction. This Court should also decline to exercise jurisdiction because this case deals with the application of the UCCJA, which was repealed effective October 1, As a consequence, the resolution of this case is not of great public importance and has only a limited potential application. ARGUMENT II. THE SECOND DISTRICT S REVERSAL OF THE TRIAL COURT S SETTING ASIDE OF THE POSTJUDGMENT CUSTODY AND CHILD SUPPORT ORDERS FOR LACK OF SUBJECT MATTER JURISDICTION DUE SOLELY TO THE FAILURE TO FILE A UCCJA AFFIDAVIT IS NOT IN CONFLICT WITH ANY DECISION OF ANOTHER DISTRICT COURT BECAUSE ONLY THIS CASE ADDRESSED THE FACTUAL CIRCUMSTANCE OF THE ORIGINAL FINAL JUDGMENT BEING ENTERED IN FLORIDA AND THE PLEADINGS ESTABLISHING THE 3

7 PARTIES AND THE MINOR CHILD CONTINUING TO RESIDE IN FLORIDA. The Former Wife asserts this case conflicts with Ruble v. Ruble, 884 So. 2d 150 (Fla. 2d DCA 2004) 1 ; Kochinsky v. Moore, 698 So. 2d 397 (Fla. 4th DCA 1997); Walt v. Walt, 574 So. 2d 205 (Fla. 1st DCA 1991); Perez v. Perez, 519 So. 2d 1104 (Fla. 3d DCA 1988); Mouzon v. Mouzon,458 So. 2d 381 (Fla. 5 th DCA 1984); Prager v. Mitchell, 651 So. 2d 809 (Fla. 5th DCA 1995); and Nobile v. Nobile, 722 So. 2d 848 (Fla. 1 st DCA 1998) on the same question of law. Fla. Const. Art. V, Section 3(b)(3); Fla. Rule of App. P (a)(2)(A)(iv). (Petitioner s Brief at 5). Notably, the Second District did not certify any conflict. Here, the trial court s order effectively set aside five years of postjudgment rulings regarding custody and child based on a finding that the circuit court lacked subject matter jurisdiction over the proceedings solely because the Former Husband did not file a UCCJA affidavit as required by section , Florida Statutes (2000), when he sought a modification of the final judgment. 1 Any asserted intradistrict conflict between the Second District s Opinion in this case and the Second District s Opinion in Ruble does not establish a basis for jurisdiction in this Court. Fla. Const. Art. V, Section 3(b)(3); Fla. Rule of App. P (a)(2)(A)(iv). Ruble is, therefore, not addressed further herein. 4

8 The Second District reversed and remanded for the trial court to reinstate the orders. The Second District stated that section , Florida Statutes (2000), contains the jurisdictional provisions while section contains the vehicle by which a party provides the information necessary to determine jurisdiction. While failing to file the section affidavit may hinder the court s ability to make a determination of jurisdiction, the failure to do so is not in itself fatal to jurisdiction. 2 In this case, the circuit court which entered the final judgment determining custody was presumed to have continuing jurisdiction under Fla. Stat. section and Yurgel v. Yurgel, 572 So. 2d 1327 (Fla. 1990). The Former Husband sufficiently invoked the trial court s subject matter jurisdiction in his petition for modification, which alleged that both parties and the child resided in Florida, because this pleading demonstrated the subject matter jurisdiction of the court under Fla. Stat. Section To attack the subject matter, the Former Wife must have at least alleged that the factual bases supporting subject matter jurisdiction were absent. Her allegation only that the UCCJA affidavit was 2 The Fourth District s decision in In re: T.L. v. State, Dept. of HRS, 392 So. 2d 288 (Fla. 5 th DCA 1980) is in accord. There, the Fourth District found the failure to file the UCCJA affidavit did not deprive a court of subject matter jurisdiction because there was sufficient information from which the court could determine that it had jurisdiction under section

9 missing was insufficient to render the judgments void and subject to collateral attack. Each of the cases cited by the Petitioner as being in conflict with the present case are factually distinguishable. Each involved the factual scenario of one parent residing in Florida and the other parent residing in another state, that is, the potential for an interstate jurisdictional conflict. In the present case, both parents resided in Florida. In addition, none of those cases involved the factual circumstances present in this case, which were, as noted by the Second District: the circuit court had entered an initial final judgment involving custody and support and thus maintained continuing exclusive jurisdiction over the cause absent some event that would have divested the court of jurisdiction; there was no indication that such an event had occurred as the pleadings alleged that both parties and the child continued to reside in Florida; and the Former Wife failed to raise the pleading deficiency during the proceedings and on direct appeal of the custody determination. In the Opinion, the Second District distinguished Kochinsky; Walt; Perez; and Mouzon, all of which were cited by the Petitioner in her attempt to establish this Court s jurisdiction, and declined to stretch the holdings of these cases to the factual circumstances presented here. 6

10 In Kochinsky, the Fourth District reversed an order awarding temporary custody to a mother residing in Virginia who had not filed a UCCJA affidavit. Noting that the residence of the parties in different states created the potential for interstate conflict, the Fourth District concluded that compliance with the requirements of the UCCJA is essential to creating an enforceable order. The Fourth District called the failure to file the UCCJA affidavit a jurisdictional defect that could be cured only by reversing the order and remanding. On remand, the court could enter new orders after considering a UCCJA affidavit filed pending appeal. In Walt, the First District refused to recognize or enforce a Mississippi custody decree because (1) the father had not filed a timely UCCJA affidavit in that jurisdiction and (2) the decree was entered without a valid basis for jurisdiction under the UCCJA s provisions. The Court stated that there is no question that an unexcused failure to file the information required by section leaves the court without jurisdiction to enter a valid custody order under the UCCJA. In Perez, the party s failure to file a UCCJA affidavit was not called a jurisdictional defect. Rather, it was the failure of the complaint to allege that either party was a resident of Florida for the statutory period that deprived the court of subject matter jurisdiction. 7

11 In Mouzon, the Fifth District found a judgment of dissolution was void for lack of jurisdiction because the complaint failed to adequately allege a basis for long arm jurisdiction. Therefore, any service of process was void, resulting in a lack of in personam jurisdiction over the husband, who resided in North Dakota. And, according to Mouzon: Neither does the complaint or any affidavit attached to it show any of the jurisdictional requirements of section or , Florida Statutes (1981), so as to vest the court with custody jurisdiction, nor does the complaint even allege that the children reside in Florida, so there is no basis upon which the court could have acquired jurisdiction over the children. Additionally, in Walt, Perez, and Mouzon, the failure to file a UCCJA affidavit was not the sole basis for reversal. In Walt, the First District concluded there was no valid basis for an out of state court s exercise of jurisdiction even if the father had filed an accurate UCCJA affidavit. In Perez, the court reversed for numerous due process concerns. In Mouzon, the Fifth District concluded a default final judgment must be reversed when personal jurisdiction was not acquired over the husband, who was served out of state. Also, none of these cases involved a circuit court s modification of its earlier final judgment of dissolution, in which jurisdiction is presumed to continue absent a complete loss of contacts in Florida. Prager, another case asserted to be in conflict, is factually distinguishable for the same reasons. The Fifth District affirmed the 8

12 dismissal of the father s child custody complaint based on his failure to provide the UCCJA affidavit where the complaint did not contain all the information required by , the mother will or has been involved with Hawaii s legal system because she and the children recently moved there, and there was no reasonable assurance that there will not be interstate considerations. The Court noted that had the father simply sought to amend his complaint, the failure to timely file the required information could have been cured. Nobile v. Nobile, 722 So. 2d 848 (Fla. 1 st DCA 1998), is factually different because, while the Florida trial court entered the judgment of dissolution of marriage, the children had continually resided with their mother, either in Georgia or Tennessee, since the dissolution of marriage. As a consequence, the First District denied the father s petition for writ of certiorari concerning visitation and custody because he completely failed to comply with the requirements of section while the mother brought a proceeding in her present home state and complied with the UCCJA affidavit requirement. Finally, even if this Court should determine the Second District s Opinion in this case is in conflict with decisions of other districts, this Court should still decline to exercise its discretionary jurisdiction. This case is 9

13 governed by the Uniform Child Custody Jurisdiction Act, which was repealed and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, effective October 1, The UCCJA only applies to custody proceedings filed before October 1, 2002, and, as a result, the resolution of the issue presented by this case is not of great public importance and has only a limited potential application. CONCLUSION For the foregoing reasons, this Court should decline to exercise jurisdiction over this cause as the Second District s Opinion does not expressly or directly conflict with a decision of another district court of appeal or of this Court on the same question of law. Respectfully submitted, LORENA L. KIELY, ESQUIRE Law Office of Lorena L. Kiely Fla. Bar No E. Jackson Street, Suite 306 Tampa, Florida (813) COUNSEL FOR RESPONDENT/FORMER HUSBAND 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail to J. Stanford Lifsey and N. Burton Williams, 324 South Hyde Park Avenue, Suite 375, Tampa, Florida 33606, this day of June, Attorney CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Brief has been prepared using the font Times New Roman 14-point, in accordance with Rules 9.100(1) and 9.210(a)(2), Florida Rules of Appellate Procedure. Attorney 11