Flores v. Saunders
| Decision Date | 19 April 1996 |
| Docket Number | No. 95-1302,95-1302 |
| Parties | 21 Fla. L. Weekly D961 Irene FLORES, Appellant, v. Charles P. SAUNDERS, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Seminole County; Wallace H. Hall, Judge.
Stanton L. Cobb, Orlando, for Appellant.
Robert J. Wheelock of Robert J. Wheelock, P.A., Orlando, for Appellee.
Appellant appeals a final judgment in which the trial court awarded appellee primary residential custody of the parties' only child, Rhyannon Saunders, who will turn three on April 14, 1996.
This case arose on December 9, 1994 when appellee filed a petition to establish custody, visitation and support in the Seminole County trial court. He alleged in part that 1) he was the natural father of Rhyannon and that appellant was the natural mother; 2) he was a Florida resident and that appellant had lived in Florida until September 29, 1994 at which time she had moved from the state with Rhyannon; and 3) it was in Rhyannon's best interest that he be awarded sole custody of the child.
Appellee also filed a verified motion for temporary emergency custody in which he set forth several instances of appellant's alleged neglect of Rhyannon. Alleging that he had not discovered the child's address until December 6, 1994 and that appellant had denied him visitation, he maintained that he was fearful that if he provided her with notice of the motion, she would again flee with the child. He later filed an affidavit in support of his motion for temporary emergency custody in which he reiterated that appellant, who was living in Chicago, had refused to allow him to see Rhyannon.
Court minutes dated February 13, 1995 indicate that a hearing was held on "the motion" and that jurisdiction was discussed. They also say that the trial court "will confer with Illinois Court and reserved ruling on jusidiction [sic]." On March 8th, the Cook County, Illinois trial court entered an order on appellant's emergency petition for Uniform Child Custody Jurisdiction Act (UCCJA) determination and emergency petition for temporary and permanent custody of Rhyannon. 1 Specifically, the court 1) determined that it had jurisdiction of any custody matter pertaining to the child pursuant to the UCCJA; 2) awarded appellant temporary custody of the child; 3) ordered that the child not be removed from its jurisdiction without further order; and 4) set the cause for a hearing on February 17th.
Following a hearing on February 13th on appellee's motion for temporary custody, the Seminole County trial court, on March 9th, entered an order in which it granted appellee temporary custody of Rhyannon, thereby ordering that she be immediately returned to its jurisdiction. On April 19th, a default was entered against appellant in the Seminole County trial court for failure to serve or file any paper as required by law. The next day, the court entered a final judgment awarding appellee primary residential custody of the child. The court's order provides in part the following:
A. The Court has personal jurisdiction over the parties, in that the Petitioner is a resident of Seminole County, Florida, and the Respondent resided and maintained a residence in Seminole County, Florida immediately before leaving the state creating substantial ties to Seminole County, Florida.
B. The Court has subject matter jurisdiction over this action as this is the last place that the parties resided together with the minor child.
C. The Respondent was personally served with service of process, had an opportunity to appear and be heard, chose not to appear either personally or through counsel admitted to practice in Florida, and therefore the Clerk properly entered default against the Respondent.
D. It is in the best interests of the minor child to award custody to the Petitioner and to have the child returned to the jurisdiction of this Court.
On December 4th, the Cook County trial court entered an order denying appellee's motion to enforce the April 20th Seminole County trial court's final judgment. Acknowledging that the Seminole County court had previously entered an order awarding appellee custody of Rhyannon and that it [the Cook County court] had previously entered an order awarding appellant temporary custody of the child, the court found that resolution of the jurisdictional issue was governed by the UCCJA. Ultimately determining that it had jurisdiction to determine the custody issue, the court reasoned in part as follows:
... It is clear from the record that neither Florida nor Illinois qualify as the home state of Rhyannon M. Saunders because of insufficient time spent in both states prior to commencement of the several actions. It is equally clear that the child does not qualify as an abandonned [sic] child; nor is she one for whom no other state would have jurisdiction.
* * * * * *
In the desire to promote the aims of the "Act" this court considers first the best interest of the child and holds that since the child was in the State of Florida for only three months, the connection to Florida is minimal, especially in light of the fact that the child resided at two different addresses in the space of two months and in each case was sharing quarters of family members and not occupying premises leased or owned by Petitioner or Respondent. Essentially, they were just passing through Florida. In re Bass, 176 Ill.App.3d 249 , 530 N.E.2d 717 (1988); In re Rogers, 141 Ill.App.3d 561, , 490 N.E.2d 1000 (1986). Indeed, the act was written to protect the child's best interest and any hardships faced by the parents must give way to what is in the best interest of the child. Doehner v. Jessup [In re Doehner ], 215 Ill.App.2d[3d] 570 , 574 N.E.2d 1380 (1991). The act permits some discretion in the trial court's determination of its jurisdiction to ensure that litigation takes place in the forum where the ties between the state and the child and his family are the closest. In re Slate, 181 Ill.App.3d 110, , 536 N.E.2d 894 (1989).
For all of the reasons above; because personal jurisdiction over either parent is not required for a circuit court to decide the custody status of a child (McGuane v. McGuane, 268 Ill.App.3d 751, , 645 N.E.2d 575 (1995)); and because there is no evidence that the order of February 9, 1995 has been vacated or even attacked as invalid. "A court having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois". 750 ILCS 35/4(b); and because the court finds that the Florida did not proceed substantially in accordance with the "Act" and the factual circumstances do not meet the jurisdictional standards of the "Act".
Appellant contends on appeal that the trial court erred in determining that it had subject matter jurisdiction to...
To continue reading
Request your trial
-
Keveloh v. Carter, 96-3391
...to decide the paternity and custody issues concerning Shawn. See Dorrity v. Dorrity, 695 So.2d 411 (Fla. 5th DCA 1997); Flores v. Saunders, 674 So.2d 767 (Fla. 5th DCA), rev. denied, 687 So.2d 1305 (Fla.1996); Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995). Because the Florida co......
-
Munnerlyn v. Wingster, 5D01-2925.
...to decide the paternity and custody issues concerning Shawn. See Dorrity v. Dorrity, 695 So.2d 411 (Fla. 5th DCA 1997); Flores v. Saunders, 674 So.2d 767 (Fla. 5th DCA), rev. denied, 687 So.2d 1305 (Fla.1996); Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995). Because the Florida co......
-
Chaddick v. Monopoli
...was not in accordance with the UCCJA. Id. Similarly, in McCabe v. McCabe, 600 So.2d 1181 (Fla. 5th DCA 1992), and Flores v. Saunders, 674 So.2d 767 (Fla. 5th DCA 1996), the Fifth District has recognized that hearings may be required if section 61.1308(1)(b), Florida Statutes (1991), is invo......
-
Mannino v. Mannino
...2d DCA 2007) (discussing the meaning of "home state" in the context of a custody proceeding in a dependency case); Flores v. Saunders, 674 So.2d 767 (Fla. 5th DCA 1996) (discussing application of the similar "home state" provisions of the precursor to the present UCCJEA); McCabe v. McCabe, ......
-
Jurisdiction and venue
...adjudicate custody of a child even if it does not have personal jurisdiction over the parents. [§61.514, Fla. Stat.; Flores v. Saunders, 674 So. 2d 767 (Fla. 5th DCA 1996) (trial court erred by determining that it had personal jurisdiction over out of state parent in custody case; court’s d......
-
Alternative dispute resolution and settlement
...jurisdiction over the parents as the UCCJEA creates subject-matter jurisdiction over the child. [§61.514, Fla. Stat; Flores v. Saunders, 674 So. 2d 767 (Fla. 5th DCA 1996)(trial court erred by determining that it had personal jurisdiction over outof-state parent in custody case as court’s d......
-
Defaults and uncontested hearings
...where trial court had UCCJEA jurisdiction; however, such jurisdiction does not extend to support determinations); Flores v. Saunders, 674 So. 2d 767 (Fla. 5th DCA 1996) (trial court erred by determining that it had personal jurisdiction over out of state parent in custody case as court’s de......