Filing # 18890383 Electronically Filed 10/01/2014 03:28:44 PM RECEIvED, 10/1/2014 15:33:49, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC14-1708 LAYLA BILLIE, Petitioner, vs. KEVIN STIER, Respondent. RESPONDENT'S BRIEF ON JURISDICTION Jay M. Levy, Esquire Jay M. Levy, P.A. 9150 South Dadeland Boulevard Dadeland Centre II, Suite 1010 Miami, Florida 33156 Telephone No: (305) 670-8100 Facsimile No: (305) 670-4827 Primary: jay@jaylevylaw.com Secondary: wendy@jaylevylaw.com William T. Brady, Jr., Esquire Law Offices of William T. Brady, PA 800 Brickell Avenue, PH 2 Miami, Florida 33131 Telephone No: (305) 358-7688 Facsimile No: (305) 358-4010 Primary: wbrady@,wbradylaw.com;
TABLE OF CONTENTS ITEM PAGE Statement of the Case... 4-5 Summary of Argument... 5 Argument Point I THE DECISION OF THE THIRD DISTRICT BELOW IS NOT IN EXPRESS AND DIRECT CONFLICT WITH BARNES v. BARNES, 124 So. 3d 994 (Fla. 4th DCA 2013), SCHAFFER v. LING, 76 So. 3d 940 (Fla. 4th DCA 2011), SARPEL v. EFLANLI, 65 So. 3d 1080 (Fla. 4th DCA 2011), AND K.I. v. DEP'T OF CHILDREN & FAMILIES, 70 So. 3d 749 (Fla. 4th DCA 2001) ON THE SAME POINT OF LAW... 6-8 Point II THE DECISION OF THE THIRD DISTRICT BELOW IS NOT IN EXPRESS AND DIRECT CONFLICT WITH STA TE v. CITY OF FORT FIER CE, 88 So. 2d 135 (Fla. 1956) ON THE SAME POINT OF LAW... 8 Conclusion... 9 Certificate of Service... 10 Certificate of Type Size... 10
TABLE OF CITATIONS Cases Page Aravena v. Miarni-Dade County, 928 So. 2d 1163 (Fla. 2006). 6 Barnes v. Barnes, 124 So. 3d 994 (Fla. 4th DCA 2012)... 5, 8 Department ofhealth and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 8, 9 Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)... 6 K.L v. Department ofchildren and Families, 70 So. 3d 749 (Fla. 4th DCA 2011)... 5, 8 Sarpel v. Eflanli, 65 So. 3d 1080 (Fla. 4th DCA 2011) rev. den. 86 So. 3d 1114(Fla. 2012)... 5, 8 Schaffer v. Ling, 76 So. 3d 940 (Fla. 4th DCA 2011)... 5, 8 State v. City offort Pierce, 88 So. 2d 135 (Fla. 1956)... 5, 8 Statutues 61.503(7)... 6 61.505(3)... 7 61.519(1)... 7 1 111
IN THE SUPREME COURT OF FLORIDA LAYLA BILLIE, CASE NO: SCl4-1708 Petitioner, vs. KEVIN STIER, RESPONDENT'S BRIEF ON JURISDICTION Respondent. Petitioner seeks to invoke the discretionary jurisdiction of this court to review a decision of the District Court of Appeal, Third District on the grounds of express and direct conflict of decision. Petitioner Layla Billie, Petitioner below, shall be referred to as "Mother". Respondent Kevin Stier, Respondent below, shall be referred to as "Father". The Miccosukee Tribal Court shall be referred to as the "Tribal Court." The letters "App." shall represent the Appendix of Petitioner. The Uniform Child Custody Jurisdiction and Enforcement Act shall be referred to by the letters "UCCJEA". Statement of the Case Mother filed a proceeding to determine custody of the parties' two minor children before the Tribal Court. Two weeks later Father filed a proceeding in the Circuit Court of the Eleventh Judicial Circuit seeking to determine paternity, custody, and child support. After an evidentiary hearing, the Circuit Court determined that the Tribal Court proceeding was not in substantial conformity with the UCCJEA and as a result the Circuit Court rather than the Tribal Court had jurisdiction to decide the custody issue. Mother filed a Petition for Writ of Prohibition before the District Court of Appeal, Third District 4
challenging the exercise of subject matter jurisdiction by the Circuit Court. The Third District denied the writ concluding "[T]hat the Circuit Court was correct in determining that it, and not the Tribal Court has jurisdiction to decide the custody issue" (App. 2). Mother now seeks review before this court based upon an alleged direct and express conflict with decisions of the District Court of Appeal, Fourth District and of this Court on the saine point of law. For the reasons which follow, there is no express and direct conflict of decisions and the petition for review should be denied. Summary of the Argument I. The decision of the Third District is not in express and direct conflict of decision on the same point of law with Barnes v. Barnes, 124 So. 3d 994 (Fla. 4th DCA 2012); Schaffer y. Ling, 76 So. 3d 940 (Fla. 4th DCA 2011); K.I v. Department of Children and Families, 70 So. 3d 749 (Fla. 4th DCA 2011); nor Sarpel v. Eflanli, 65 So. 3d 1080 (Fla. 4th DCA 2011), rev. den. 86 So. 3d 1114(Fla. 2012). Each of those cases decided whether Florida was the home state of the minor children. The case below passes on an entirely different point of law - whether the decision of the foreign court was rendered in substantial conformity with the UCCJEA. II. T13e decision of the Third District is not in express and direct conflict of decision on the same point of law with State v. City of Fort Pierce, 88 So. 2d 135 (Fla. 1956) which held that the courts cannot rewrite acts of the Legislature. The Third District nowhere held in its opinion that it was rewriting an act of the Legislature.
Argument Point I THE DECISION OF THE THIRD DISTRICT BELOW IS NOT IN EXPRESS AND DIRECT CONFLICT WITH BARNES v. BARNES, 124 So. 3d 994 (Fla. 4th DCA 2013), SCHAFFER v. LING, 76 So. 3d 940 (Fla. 4th DCA 2011), SARPEL v. EFLANLI, 65 So. 3d 1080 (Fla. 4th DCA 2011), AND K.I. v. DEP T OF CHILDREN & FAMILIES, 70 So. 3d 749 (Fla. 4th DCA 2001) ON THE SAME POINT OF LAW. This Court in Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980) defined its conflict jurisdictiorsafter the constitutional amendments of 1980: This Court may only review a decision of a District Court of Appeal that expressly and directly conflicts with the decision of another District Court of Appeal or the Supreme Court on the same question of law. The dictionary definitions of the term "express" include: "To represent in words; to give express to. "Expressly" is defined: "In an express manner." Websters' Third New International Dictionary (1961 Ed. Unabr.). In Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006) this court noted that conflict jurisdictioë is present where the holdings in two separate cases are irreconcilable. With these conflict standards in mind, Father turns to the jurisdictional arguments advanced by Mother. The Third District's opinion rendered below was not based on the concept of "home state" within the meaning of 61.503(7), Fla. Stat., but on whether the actions of the Tribal Courf were made under factual circumstances in substantial conformity with 6
the jurisdictional standards of the UCCJEA within the meaning of 61.505(3), Fla. Stat.' See also 61.519(1), Fla. Stat. As the Third District stated: In this case, the Circuit Court found that the Tribal Court did not substantially conform with the UCCJEA. Specifically, the Circuit Court relied on the fact that 1) the father did not receive notice of the reason for the proceedings in the Tribal Court as required by Section 61.509(3), Florida Statutes (2012), and he had not submitted himself to the jurisdiction of the Tribal Court; 2) at the temporary child custody hearing the father did not have the opportunity to be heard; 3) the fathèr's attorney was not allowed into the tribal proceedings even as an observer; 4) although the father was allowed to attend the proceedings, he was unable to understand what was happening as the proceedings were conducted largely in the Miccosukee language and he was not given an interpreter; and 5) the mother testified in Miccosukee for over twenty minutes and the Tribal Court gave the father only a twominute summary in English before granting temporary custody'to the mother. We agree with the Circuit Court that those actions were not in substantial conformity with the UCCJEA. (App. 6) Mother contends that the decision below is in conflict with decisions of the District Court of Appeal, Fouith District with regard to the application of the "home state" concept. However, the District Court's decision did not address the concept of "home state" in its opinion but rested its decision on whether the conduct of the Miccosukee Tribal Court In its opinion, the Third District stated "[A]s it does not appear to be disputed by the father, for purposes of this petition, we proceeding under the assumption that the children met the home state requirements necessary to confer jurisdiction to determine custody in the Tribal Court" (App. 4). Although not germane to the jurisdictional analysis employed to determine whether there is a conflict of decisions, Father has always contended both before the circuit court and the district court of appeal, that the Miccosukee Tribe was not the home state of the minor children. 7
proceedings substantially conformed to the UCCJEA. For this reason, Mother cannot establish that the decision of the District Court below is in direct and express conflict of decision on the same point of law with Barnes v. Barnes, 124 So. 3d 994 (Fla. 4th DCA 2012); Schaffer v. Ling, 76 So. 3d 940 (Fla. 4th DCA 201 I); K.I. v. Department of Children and Families, 70 So. 3d 749 (Fla. 4th DCA 2011); nor Sarpel v. Eflanli, 65 So. 3d 1080 (Fla. 4th DCA 2011), rev. den. 86 So. 3d 1114 (Fla. 2012) because each of those decisions was concerned with whether Florida was the home state of the minor children. not whether the foreign court issued its decision in substantial compliance with the UCCJEA. Point II TFIE DECISION OF THE THIRD DISTRICT BELOW IS NOT IN EXPRESS AND DIRECT CONFLICT WITH STATE v. CITY OF FORT PIERCE, 88 So. 2d 135 (F la. 1956) ON THE SAME POINT OF LAW. This court in Department ofhealth and Rehabilitative Services v. National Adoption Counselin Service, Inc., 498 So, 2d 888 (Fla. 1986), noted that after the constitutional amendment, an inherent or "implied" conflict no longer serves as the basis for this court's jurisdiction. Mother argues that the District Court of Appeal's decision below conflicts with State v. City offort Pierce, 88 So. 2d 135 (Fla. 1956) because this Court in Fort Pierce noted that it was not the province of a court to rewrite an act of the Legislature. However howhere in the opinion below did the Third District indicate that it was rewriting an act!pf the Legislature. Mother is arguing an implied conflict but as noted by this court in Dèpartment of Health and Rehabilitative Services v. National Adoption 8
Counseling Service, Inc., supra., implied conflict is no longer a basis for this court to exercise conflict jurisdiction. Conclusion Based upon the foregoing cases and analysis, the decision of the District Court of Appeal below is not in express and direct conflict with any of the decisions which Mother contends are in conflict. This Court should deny the petition for review. LAW OFFICES OF WILLIAM BRADY, P.A. 800 Brickell Avenue Penthouse Two Miami, Florida 33131 Phone: (305) 358-7688 Primary: wbrady@wbradylaw.com JAY M. LEVY, P.A. 9150 South Dadeland Boulevard Dadeland Centre II, Suite 1010 Miami, Florida 33156 Telephone No: (305) 670-8100 Facsimile N (305 70-482 BY:. I ÈVÝ/ESQVIRE 'L DA BAR NO: 21975 Pr mary: Jay@javlevylaw.(om econdary: wendy@iavidylaw.com 9
Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was mailed to Linda Kelly Kearson, Esquire, General Counsel for The Honorable Mindy Glazer, 175 NW 1" Avenue, 30* Floor, Miami, Florida, 33128, Ikearson@judl l.f1courts.org; Paul Morris, Esquire, Law Offices of Paul Morris, PA, 9350 S. Dixie Highway, Suite 1450, Miami, Florida, 33156, paulappeal@aol.com; and to Elisa T. Terraferma, Esquire, Walton, Lantaff, et. al., 9350 S. Dixie Highway, 10* Floor, Miami, Florida, 33156 eterraferma@waltonlantaft.com; thi 1st day / ctober, 2014. Alto ey f R'espondent / CertificÁte óf Type Size and Format Counsel for Petitioner her certifies that this brief s been prepared in 14 point Times New Roman Microsoft Word format. òrne) s for lkespondent 10