Hamill v. Bower

• Decision Date: 03 April 1986
• Docket Number: BJ-365
• Citation: 11 Fla. L. Weekly 787,487 So.2d 345
• Parties: 11 Fla. L. Weekly 787 Shirley A. HAMILL, Petitioner, v. N. Russell BOWER, Judge of the Circuit Court of the Fourteenth Judicial Circuit of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 345

487 So.2d 345

11 Fla. L. Weekly 787

Shirley A. HAMILL, Petitioner, v. N. Russell BOWER, Judge of the Circuit Court of the Fourteenth Judicial Circuit of Florida, Respondent.

BJ-365.

District Court of Appeal of Florida,

First District.

April 3, 1986.

William F. Wager, Jr., Panama City, for petitioner.

James H. White, Jr., Panama City, for respondent.

ON PETITION FOR REHEARING

PER CURIAM.

By her motion for rehearing, petitioner has brought to our attention for the first time, the decision in Kumar v. Superior Court of California, 186 Cal.Rptr. 772, 32 Cal.3d 689, 652 P.2d 1003 (Cal.1982), in which the decision relied on in our original opinion was implicitly overruled. On further consideration of this cause, we grant the motion for rehearing and withdraw our earlier decision, substituting for it the following:

By this petition for writ of prohibition, petitioner seeks to prohibit respondent, judge of the circuit court of the Fourteenth Judicial Circuit, from exercising jurisdiction over this case involving a child custody dispute. In 1978, petitioner and her husband were divorced in California. Their three children lived with petitioner in California until June, 1983, when, pursuant to a stipulation executed by the parties (but never filed in the California court), the children began living with their father in Florida. They lived with him from that time until April, 1985, when the wife took them back to California without the father's permission. On April 4, 1985, prior to the removal of the children by the mother, the father had filed a complaint to establish the foreign decree as a Florida judgment and to have the stipulation ratified, affirmed and modified. After her return to California, petitioner filed for relief in the California court seeking an order vacating the stipulation and further modification of the original California decree. The California court stayed the proceeding in order to allow the Florida court an opportunity to either accept or decline jurisdiction. Thereafter, petitioner moved to dismiss the father's complaint for lack of jurisdiction. The motion to dismiss was denied and this petition was filed.

Under Article V, section 5(b), of the Florida Constitution, circuit courts of this state are vested with the subject matter jurisdiction to hear child custody matters when the requirements of section 61.1308 (of the Uniform Child Custody Jurisdiction Act) are present. Pursuant to section 61.1308(1), a circuit court has jurisdiction if this state is the home state of the child. The circuit court also has jurisdiction when exercise of that jurisdiction is in the child's best interest and the child as well as at least one contestant has a significant connection with this state. Section 61.1308(1)(b)1. In Reeve v. Reeve, 391 So.2d 789 (Fla. 1st DCA 1980), we held that the significant connection test was met where the original dissolution and custody decree was entered in Florida, and the noncustodial parent remained in Florida maintaining a continuous relationship with the child whose "home state" had since become New Jersey. Reeve did not address the question of the concurrent jurisdiction in the home state and therefore we originally held here that that opinion did not preclude Florida from exercising jurisdiction as the home state even though the California court had jurisdiction under the significant connection provision. In so holding, we relied in part on the California District Court case of In re the Marriage of Leonard, 175 Cal.Rptr. 903, 122 Cal.App.3d 443 (Cal.Ct. of App. 1st Dist.1981). In Leonard, the California court exercised jurisdiction where California had become the home state of the child though a prior custody decree had been entered in Georgia. However, Leonard was disapproved in Kumar, supra.

In Kumar, the husband and wife were divorced in New York and the trial court awarded custody of the child to the wife. Thereafter, the wife and child moved to California. A year later, the wife sought to modify the previous New York order in a California court. The California Supreme Court found that the trial court lacked jurisdiction under the UCCJA to modify the New York custody decree so long as New York retained significant connections with the child and that, unless New York declined to exercise jurisdiction, California had no authority to modify the decree. In short, California held that it had no authority to modify the prior New York custody decree unless (1) New York declined to exercise jurisdiction or (2) New York failed to retain "significant connections" with the child.

The Kumar court extensively analyzed the child custody area of law, recognizing that the facts before it fit within the rule involving modification of an out-of-state custody decree, rather than initial custody. According to Kumar, initial jurisdiction is determined by guidelines which look to the state with the closest connections to...