Chaddick v. Monopoli

• Decision Date: 28 June 1996
• Docket Number: No. 95-1328,95-1328
• Citation: 677 So.2d 347
• Parties: 21 Fla. L. Weekly D1511 Karen CHADDICK f/n/a Karen Monopoli, Petitioner, v. Joseph MONOPOLI, Respondent.
• Court: Florida District Court of Appeals

Page 347

677 So.2d 347

21 Fla. L. Weekly D1511

Karen CHADDICK f/n/a Karen Monopoli, Petitioner, v. Joseph MONOPOLI, Respondent.

No. 95-1328.

District Court of Appeal of Florida Fifth District.

June 28, 1996.

Donald P. Sluder, Ocoee, for Petitioner.

No Appearance for Respondent.

EN BANC.

GOSHORN, Judge.

Karen Chaddick seeks certiorari review of the trial court's order dismissing her petition to enforce a Massachusetts divorce decree's child custody provision. ¹ Following a telephonic hearing with a Virginia judge pursuant to subsection 61.1316(4), Florida Statutes (1993), the trial court concluded that the Virginia court had assumed jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA). ² It therefore dismissed Chaddick's petition, deferring to the Virginia court's jurisdiction. On appeal, Chaddick argues that there should be an evidentiary hearing and that the case should proceed on its merits in Florida. The record affirmatively shows the Florida trial court acted in conformity with the dictates and objectives of the UCCJA in finding that the Virginia court properly assumed jurisdiction and considered the issues Chaddick wishes to raise in Florida. We therefore affirm the dismissal of Chaddick's Florida petition. See § 61.1314(1), Fla. Stat. (1993) (providing that a court of this state shall not exercise its jurisdiction under the UCCJA if, at the time the petition is filed, a proceeding concerning child custody is pending in a court of another state exercising jurisdiction substantially in conformity with the UCCJA).

Chaddick appeared and participated in the custody proceedings in Virginia. Dissatisfied with the Virginia proceedings, Chaddick filed her petition to enforce the child custody provisions of the Massachusetts divorce decree in the circuit court of Orange County, Florida. Judge Baker, after a telephonic conversation with the Virginia judge, concluded that the Virginia court had jurisdiction over the child custody issue. See § 61.1316(4), Fla. Stat. (1993). Judge Baker found that only a month earlier the Virginia court had heard all the same matters Chaddick was asserting in her Florida petition and had ruled against Chaddick on them. Implicit in the dismissal of Chaddick's Florida petition is Judge Baker's finding that the Virginia court had exercised its jurisdiction substantially in conformity with the UCCJA. The Virginia court, under the "Best Interest Doctrine," could have properly assumed jurisdiction upon finding that the children and one of the parents had a significant connection with that state. See § 61.1308(1)(b)1., Fla. Stat. (1993); Siegel v. Siegel, 575 So.2d 1267 (Fla.1991) (New York court, in which custody proceeding was brought prior to commencement of proceedings in Florida court, was appropriate forum for determining child custody, even though it was claimed that New York was not exercising jurisdiction in conformity with the UCCJA; child was in New York with one parent at the time proceeding commenced there, thus providing jurisdictional basis).

In this case, Chaddick, upset by adverse rulings in Virginia, filed a petition in Orange County in hopes of finding a more favorable forum. This runs counter to the stated purposes of the UCCJA, namely to avoid jurisdictional competition in conflict with courts of other states, to discourage continuing controversies over child custody, and to avoid relitigation over custody decisions of other states insofar as possible. See § 61.1304(1), (4), and (6), Fla. Stat. (1993). The child custody issue has been litigated in Virginia, where both parties appeared and a complete record developed. If the Virginia court erred in assuming jurisdiction, that issue should be raised in the appropriate appellate court in Virginia. Accordingly, the trial court's order dismissing Chaddick's petition is affirmed.

AFFIRMED.

PETERSON, C.J., and COBB, THOMPSON and ANTOON, JJ., concur.

HARRIS, J., concurs and concurs specially, with opinion.

W. SHARP, J., dissents, with opinion, in which DAUKSCH and GRIFFIN, JJ., concur.

HARRIS, Judge, concurs and concurs specially.

While there is much in the language of the dissent with which I agree, I believe the dissent has missed the most critical aspect of this case. Appellant has had her day in court on her issue of jurisdiction and, perhaps in the Virginia appeal process, is still having it. It is not our function as Florida courts, trial or appellate, to review the decisions of the trial courts of our sister states which decide issues voluntarily submitted to them by citizens of our state.

Of course this matter involves a custody dispute properly covered by the Uniform Child Custody Jurisdiction Act. The father, who had the children in Virginia by virtue of his summer visitation, filed his action in the Virginia court to change custody. In his petition (among other allegations), he alleged that he was unable to redeliver custody to the mother because she had moved and refused to give him or the police her new address. The mother appeared in these proceedings and therefore personal jurisdiction over her is not an issue.

For whatever reason, the trial court gave custody to the father. The record of that proceeding is not before us. It may well be before the Virginia Court of Appeal. What is before us is the mother's admission in her petition:

[Petitioner herein] has cooperated and fully participated in the Court proceedings in Virginia in an attempt to rectify the injustice which has occurred, but all efforts in that jurisdiction have failed ....[emphasis added].

It appears that petitioner challenged the factual findings that convinced Judge Jannene Shannon of the Virginia Juvenile and Domestic Relations District Court to assume jurisdiction. In her Memorandum of Law filed with the Virginia trial court, the petitioner stated:

The determinations which must be made under both the state and federal law are factual. Petitioner submits that there was not a situation at that time which would have permitted the court to exercise "emergency" jurisdiction over the children under either statute.

If, in fact, Judge Shannon determined that the mother's refusal to divulge her whereabouts to the father constituted grounds to invoke the emergency provision of the UCCJA, a challenge to such finding should be lodged with the Virginia Court of Appeal and not with the courts of this state. Having submitted this very issue to the Virginia court and having lost, the mother should not expect a Florida court to reverse or ignore a ruling by a Virginia tribunal. The court in Dusesoi v. Dusesoi, 498 So.2d 1348,1349 (Fla. 2d DCA 1986), stated the law as follows:

Where a defendant makes a special appearance to challenge the jurisdiction of a court, and the court overrules the objection and determines that it does have jurisdiction, the decision is res judicata and precludes collateral attack on the judgment, even though the ruling may have been erroneous on the facts or law. [Citation omitted]. An aggrieved defendant must seek reversal in an appellate court of the state involved or, if he is unsuccessful there, in the Supreme Court of the United States.

[H]e cannot later attack the judgment on jurisdictional grounds if he does not avail himself of those remedies, or if the judgment is affirmed, or if the appellate court or the Supreme Court of the United States declines to consider the case.

If the mother wished to challenge the authority of the Virginia courts to hear this issue without submitting herself to the jurisdiction of the Virginia courts, she should have filed her petition to domesticate and enforce the Massachusetts judgment in Florida. Then the assigned judges, pursuant to the UCCJA, would determine which state should proceed. Indeed that is a primary function of the UCCJA. In our case, the mother did not come to the Florida courts until the Virginia court had not only, with her full participation, ruled on the issue of jurisdiction but also had awarded custody of the children to the father. This was too late.

Judge Baker, in his order dismissing the petitioner's claim, specifically found that Judge Shannon heard all of the matters raised by petitioner in this cause and ruled against her. Under Dusesoi, she had her bite of the apple.

The dissent cites Newcomb v. Newcomb, 507 So.2d 1145 (Fla. 3d DCA 1987), in support of its position that Florida courts have jurisdiction to determine if a foreign court is exercising jurisdiction "substantially in conformity" with the UCCJA. But in Newcomb, the petitioner had not appeared in the California court to unsuccessfully contest this same issue. While a special appearance preserves the issue of jurisdiction, it does so only for the purpose of appeal. It appears that petitioner has preserved the issue of the court's jurisdiction for appeal to the Virginia Court of Appeal. A special appearance, however, does not alter the fact that petitioner has voluntarily submitted the issue concerning which state should have jurisdiction under the UCCJA to the courts of Virginia. Having lost this issue in a forum in which she voluntarily appeared, Judge Baker was correct in not giving her a second bite of the apple.

W. SHARP, J., dissenting.

The UCCJA ¹ should be interpreted in such a way that gives it definite meaning. That lessens the potential that two different states will claim jurisdiction in child custody cases. My primary objection to the majority opinion is that, by denying certiorari review, we have simply crossed our fingers and hoped that there is some basis for Virginia to have assumed subject matter jurisdiction to modify a child custody decree, without requiring that the record provide us with any objective ground for why Virginia had subject matter jurisdiction under the UCCJA. In similar cases, our sister court has remanded and instructed the trial judge to proceed to develop a record which would indicate whether the out-of-state court was...