Castle v. Castle
Decision Date | 19 April 1971 |
Docket Number | No. 70--703,70--703 |
Citation | 247 So.2d 455 |
Parties | Darian Northrup CASTLE, Appellant, v. Frances CASTLE, Appellee. |
Court | Florida District Court of Appeals |
Edward W. Starr, West Palm Beach, for appellant.
J. Luther Drew, West Palm Beach, for appellee.
Interlocutory appeal to review an order granting custody of the parties' minor child to appellee, who was the plaintiff below in this suit for alimony unconnected with divorce.
The three-year-old child who is the subject of the custody order is not now and has not been at anytime during the pendency of this suit physically within the territorial limits of this state. Under the present state of the law, this fact deprived the court of jurisdiction to initially adjudicate the custody of the minor child. Dorman v. Friendly, 1941, 146 Fla. 732, 1 So.2d 734; Rich v. Rich, Fla.App.1968, 214 So.2d 777; Nieburger v. Nieburger, Fla.App.1968, 214 So.2d 382; Mirras v. Mirras, Fla.App.1967, 202 So.2d 887; Smith v. Davis, Fla.App.1962, 147 So.2d 177.
The custody order appealed is reversed.
The majority says, without reservation, restriction, or qualification, that the courts of this state cannot, as a matter of jurisdiction, adjudicate the custody of a minor child where such child is not physically present within the state during the pendency of the case. While this broad and unequivocal pronouncement provides a ready disposition of this appeal, it is my judgment respectfully advanced that such is neither the law nor should it be. This statement, if permitted to stand, will propogate a lonely, unnecessary and dangerously poor precedent in child custody cases.
The correct principle is that our courts have the power to award custody of children Domiciled within the state even though the children may be physically without the state during case pendency.
This was a suit for separate maintenance. The trial court awarded temporary custody of the three-year old daughter to the wife. The husband appeals on the basis that the court lacked jurisdiction to award such custody because the child was physically absent from the state at the time. The majority of this court accepts the husband's contention and orders a reversal of the award based on lack of jurisdiction.
It is to be noted--as a basis for comparison with the authorities relied upon by the majority--that the husband (father), wife (mother), and the three-year old daughter in question were all Domiciled in Florida at all times pertinent. They were Florida citizens--Florida people. The husband and wife were physically present before the court attended by counsel. The daughter was temporarily living in California because of the wife's illness and poor living conditions which were more particularly described in the appealed order, as follows:
That the majority position is 'lonely' is attested by the fact that no other jurisdiction holds a like view. To the contrary, twenty-seven states, the District of Columbia, Canada and England--the only ones listed that have taken a stance--are unanimous in holding that even though children may be physically without the state, power exists in the court to make an award of custody of children domiciled within the state. See annotation, 'Jurisdiction of Court to award custody of child domiciled in state but physically outside it.' 9 A.L.R.2d 434 at page 442. The lead case there cited is Beckmann v. Beckmann, 1949, 358 Mo. 1029, 218 S.W.2d 566. There the court found that the children were domiciled within the state and adjudicated custody despite the fact that the children were temporarily absent. It further announced the general rule that ordinarily the residence of a minor child is the same as that of the father but where the parents separate and establish different domiciles the child is usually regarded as taking the domicile of the parent with whom it lives, in fact. For further substantiation and elaboration, see Restatement of Laws, Conflict of Laws, §§ 30, 32, 144 and 146; 27B C.J.S. Divorce § 303(b), 427--429; and 24 Am.Jur.2d, Divorce and Separation, § 773. See also, Beekman v. Beekman, 1907, 53 Fla. 858, 43 So. 923; and Chisholm v. Chisholm, 1928, 98 Fla. 1196, 125 So. 694. For a particularly excellent and thorough discussion of this question see the opinion of Mr. Justice Traynor in the case of Sampsell v. Superior Court in and for Los Angeles County, 1948, 32 Cal.2d 763, 197 P.2d 739, beginning at page 746. Also this view was recognized in Florida in the case of Bourn v. Hinsey, 1937, 134 Fla. 404, 183 So. 614, when the Supreme Court held:
'Two questions are presented to the court: First, is the Florida court required to give full faith and credit to the decree of the chancery court in Mississippi, regardless of any considerations involving the welfare of the child; and, secondly, whether the welfare of the child requires her custody to be awarded to the petitioner or the respondents.
(Emphasis supplied.)
While there was a difference of opinion back and forth within the court as to whether there were changed conditions or whether the welfare of the child required a change in custody, the above stated principle was unchallenged and represented the law of the case.
That the majority position is 'unnecessary' is reflected by a careful analysis of the cases relied upon by them. Those cases are Dorman v. Friendly, Fla.1941, 146 Fla. 732, 1 So.2d 734; Smith v. Davis, Fla.App.1962, 147 So.2d 177; Mirras v. Mirras, Fla.App.1967, 202 So.2d 887; Nieburger v. Nieburger, Fla.App.1968, 214 So.2d 382; Rich v. Rich, Fla.App.1968, 214 So.2d 777.
With one exception, all are factually distinguishable.
In the Dorman case 1 the parties were earlier divorced and custody of the two minor children awarded to the wife. This was done at a time when the wife and children were domiciled in Florida and the husband domiciled in New York. There was no reservation of jurisdiction as concerns custody. Much later the wife and children properly moved to Virginia and established their domicile there. The husband later became a resident and domiciled in Utah. With this state of circumstances--neither the wife, husband nor children domiciled in Florida--the husband filed a post decretal petition in Florida asking, among other things, for custody of the children. The circuit court decided it had jurisdiction regardless of the fact that the parties and the children were not domiciled in Florida and this decision was presented to the Supreme Court by certiorari with the result that the trial court decision was quashed on the basis of a lack of jurisdiction. Thus, the glaring difference is that in Dorman none were domiciled in Florida, while in the instant case all are domiciled in Florida.
In the Smith case a like distinction was found with the...
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