Hickey v. Baxter, AY-441

• Decision Date: 28 December 1984
• Docket Number: No. AY-441,AY-441
• Citation: 10 Fla. L. Weekly 50,461 So.2d 1364
• Parties: 10 Fla. L. Weekly 50 Kevin HICKEY, Appellant, v. Lola Ann BAXTER, Appellee.
• Court: Florida District Court of Appeals

Page 1364

461 So.2d 1364

10 Fla. L. Weekly 50

Kevin HICKEY, Appellant, v. Lola Ann BAXTER, Appellee.

No. AY-441.

District Court of Appeal of Florida,

First District.

Dec. 28, 1984.

Ben R. Patterson, III, Patterson & Traynham, Tallahassee, for appellant.

Anthony L. Bajoczky and Joseph A. Bulone, Barrett & Bajoczky, Tallahassee, for appellee.

ZEHMER, Judge.

This case involves simultaneous child custody proceedings in Florida and Virginia. Both states have adopted the Uniform Child Custody Jurisdiction Act (UCCJA). ¹

Kevin Hickey, a resident of Virginia, appeals the denial of his motion to vacate the final judgment awarding custody of his two minor children to their mother, Lola Ann Baxter, and ordering him to pay child support, arrearages, attorney's fees, and court costs. Appellant contends the Florida court is without subject matter jurisdiction or should not have exercised its jurisdiction because Virginia obtained jurisdiction over the custody dispute before proceedings were begun in Florida. We reverse, not for the reasons asserted by appellant, but to obtain the essential information needed to determine that the Virginia court is acting in conformity with the act.

The couple's two children, born in May 1979 and November 1980, lived in Gadsden County from birth until September 1981, when the family moved to Virginia. Although the couple never married, they had lived together for several years and it is undisputed that Hickey is the father of the children. On June 10, 1983, after living in Virginia approximately one and a half years, the mother returned the children to her home in Florida. She contends that the father ordered her and the children out of the Virginia home. The father contends the children were removed from Virginia by subterfuge--ostensibly for a vacation with their maternal grandparents in Florida.

In September 1983, the father initiated custody proceedings in the Juvenile and Domestic Relations District Court of Fairfax County, Virginia. The mother became aware of these proceedings and, on November 9, 1983, petitioned the Florida court for an adjudication of paternity, award of support, and custody of the children. On the same day, the mother made an appearance in the Virginia court by filing a motion to dismiss the father's petition for custody. The motion alleged that (1) the petition failed to state a cause of action and (2) Virginia was an inconvenient forum in which to litigate the custody issue since "the best interests of the children may best be determined by examining the circumstances as they now exist in Gadsden County, Florida, and such determination would best be made by a Florida court." The mother did not assert lack of jurisdiction in Virginia as a ground for dismissal.

Custody proceedings progressed simultaneously and independently in Florida and Virginia. The father did not appear in the Florida action to contest that proceeding. After submitting to the jurisdiction of the Virginia court, the mother did not further contest the father's claims in the Virginia action, nor did she timely inform the Florida court of the pendency of the Virginia proceedings. The Florida court entered a default against the father on December 12, 1983, and was apparently unaware of the Virginia proceedings until sometime after December 22, 1983, when the mother filed an affidavit pursuant to section 61.132, Florida Statutes (1983).

Section 61.132 ² contains explicit requirements:

(1) Every party in a custody proceeding, in his first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child's present address, the places where the child has lived within the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit, every party shall further declare under oath whether: (a) he has participated as a party or witness or in any other capacity in any other litigation concerning the custody of the same child in this or any other state; (b) he has information of any custody proceeding concerning the child pending in a court of this or any other state; and (c) he knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.

Because the information is necessary for an adjudication of custody, this statute clearly requires each party to provide this information with the petition, whether contested or not, and with the answer thereto. The lower court has an affirmative duty, which was not performed in this case, to determine from the pleadings or examination of the parties whether it should order the joinder of additional parties and whether courts of another state should be contacted in accordance with the provisions of the act. §§ 61.1322 ³ and 61.1324, FLA.STAT. (1983)⁴.

In this instance, had the court below been informed of the Virginia proceeding when the petition for custody was filed, the court could have exercised its authority to order the father served with notice, as provided in section 61.1312, ⁵ requiring him to appear personally, and informing him that failure to appear might result in a decision adverse to him. § 61.1324, Fla.Stat. (1983). ⁶

Once a Florida court learns of proceedings in another state involving custody of a child, it should adhere strictly to the provisions in section 61.1314, "to the end that the issues may be litigated in the more appropriate forum." ⁷ Among other things, sections 61.1314 and 20-129 of the Virginia Code require that a court: (1) not exercise jurisdiction if, "at the time of the filing of the petition, a proceeding concerning the custody of the child was pending in another state exercising jurisdiction substantially in conformity with this act," unless that out-of-state proceeding is stayed, or (2) stay the proceedings and communicate with the out-of-state court to determine which is the more appropriate forum to litigate the custody dispute. In deciding which state is the more appropriate forum, a court, either upon its own motion or the motion of a party, must determine whether it is an "inconvenient forum" as defined in sections 61.1316 and 20-130 of the Virginia Code. Communication between the courts involved, Florida and Virginia in this case, is essential to making this determination under the statutes. See Greene v. Greene, 432 So.2d 62 (Fla. 3d DCA 1983). ⁸

The clerk of the circuit court is required by section 61.1334 ⁹ to maintain a registry in which are filed certified copies of custody decrees of other states received for filing, communications as to the pendency of custody proceedings in other states or findings of an inconvenient forum by a court of another state, and any communication or document concerning custody proceedings in another state which may affect the jurisdiction of a court of this state or the disposition to be made by it in a custody proceeding. The record in this case does not reflect any entries in such a registry or any communication between the Florida and Virginia courts.

The Florida court's failure to require the petitioning mother to file the required affidavit, failure to properly serve the father with the required notice and process, and failure to communicate with the Virginia court once the Florida court had learned of the Virginia proceedings clearly indicate that the Florida court has not substantially complied with the UCCJA requirements. Nevertheless, on January 19, 1983, the Florida court, acting on the default entered against the father, rendered a final judgment declaring Florida to be the "home state" of the children, citing sections 61.1302-61.1348, inclusive; awarding custody of both children to the mother, with reasonable visitation rights to the father; requiring the father to pay future child support and child support arrearages, and to reimburse the mother for medical and hospital costs incurred incident to the birth of the children; and requiring the father to pay reasonable attorney's fees and costs of this suit.

On February 22, 1984, the Virginia court entered a final judgment awarding custody of the children to the father, noting that on November 23, 1983, approximately one month before the final custody hearing in the Florida court, the Virginia court had determined that it "has continuing jurisdiction and is the proper forum for this action." Section 20-129(C) of the Virginia Code (Cum.Supp.1982) provides that if a Virginia court "is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall ... inform the other court to the end that the issues may be litigated in the most appropriate forum." The record does not reflect that the Virginia court communicated with the Florida court, as required by this section, prior to entering its final judgment, a fact which suggests that the Virginia court, like the Florida court, also may not be exercising jurisdiction substantially in conformity with the provisions of the UCCJA.

Addressing appellant's specific points on appeal, we now determine (1) whether Florida has subject matter jurisdiction of this suit, and (2) whether the Florida court erred in exercising jurisdiction.

Appellant contends that the Florida court does not have subject matter jurisdiction because the pending Virginia proceeding was filed first, citing Greene v. Greene, supra, and Mondy v. Mondy, 428 So.2d 235 (Fla.1983). Although we disagree and hold that the Florida court does have subject matter jurisdiction, we do so for reasons other than those given by the lower court. Section 61.1308 ¹⁰ sets forth four situations in which a Florida court has jurisdiction to make a custody determination. Only subsections (1)(a) and (1)(b) are applicable in this case. Subsection (1)(a) provides that the court has jurisdiction to make an initial determination or to modify a previous custody decree where the state...