Mondy v. Mondy, 60559

• Citation: 428 So.2d 235
• Decision Date: 03 March 1983
• Docket Number: No. 60559,60559
• Parties: Richard Duane MONDY, Petitioner, v. Carol A. MONDY, Respondent.
• Court: United States State Supreme Court of Florida

Page 235

428 So.2d 235

Richard Duane MONDY, Petitioner, v. Carol A. MONDY, Respondent.

No. 60559.

Supreme Court of Florida.

March 3, 1983.

Elliot Zisser of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for petitioner.

John R. Forbes, Jacksonville, for respondent.

PER CURIAM.

We have for review the district court decision in Mondy v. Mondy, 395 So.2d 193 (Fla. 1st DCA 1981), because of conflict with Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979), and Wheeler v. Wheeler, 383 So.2d 655 (Fla. 2d DCA 1980). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash Mondy.

The Mondys were married in 1973. In 1978 Richard Mondy left the couple's Alabama home, taking their two young sons with him. He and the boys settled in Idaho where he established residency and filed for divorce. Sometime later Carol Mondy left Alabama and, upon being served notice while in Texas, she went to Idaho, entered an appearance in the proceedings, and, among other things, requested custody of the children. The court awarded temporary custody to the father, with visitation rights to the mother, and ordered that the children not be removed from Idaho. A few days later, however, the mother took the children and flew to Jacksonville, Florida.

After final hearing, the Idaho court granted the divorce, awarded the father physical custody of the children, and placed legal custody with the court clerk until further order. The father then petitioned the circuit court in Duval County, Florida, for recognition and enforcement of the Idaho decree. The mother responded with a petition seeking establishment and modification of the Idaho decree to give her custody of the children. The court awarded her temporary custody and ordered an inquiry into the best interests and welfare of the children. The court denied the father's motions to vacate and set aside its order and to dismiss, for lack of subject matter jurisdiction, the mother's petition.

On appeal the first district affirmed the trial court's rulings. In dissent, however, Judge Joanos commented that the Florida court should have deferred to the Idaho court under the Uniform Child Custody Jurisdiction Act (UCCJA) because that court's jurisdiction over the matter was superior to the Florida court's jurisdiction. We agree and find that the Duval Circuit Court, in view of the outstanding Idaho proceedings and decree, should have declined to exercise its jurisdiction in this instance.

Growing public concern over the increasing incidence of child snatching and forum shopping in custody cases prompted approval of the UCCJA by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. The commissioners' prefatory note states that the UCCJA "is designed to bring some semblance of order into the existing chaos." 9 U.L.A. 114 (1979). The UCCJA has currently been adopted in forty-some states. ¹ Florida adopted the UCCJA through chapter 77-433, Laws of Florida, codified as sections 61.1302--61.1348, Florida Statutes (1979).

The general purposes of the act are to:

(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.

(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child.

(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.

(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.

(6) Avoid relitigation of custody decisions of other states in this state insofar as feasible.

(7) Facilitate the enforcement of custody decrees of other states.

(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child.

(9) Make uniform the law with respect to the subject of this act among states enacting it.

§ 61.1304. There are four possible bases for the exercise of a court's jurisdiction:

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(a) This state:

1. Is the home state of the child at the time of commencement of the proceeding, or

2. Had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

(b) It is in the best interest of the child that a court of this state assume jurisdiction because:

1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and

2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(c) The child is physically present in this state and:

1. The child has been abandoned, or

2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or

(d)1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and

2. It is in the best interest of the child that a court of this state assume jurisdiction.

§ 61.1308(1). "Home state" is defined as

the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent for at least 6 consecutive months or, in the case of a child less than 6 months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.

§ 61.1306(5). Jackson v. Jackson, 390 So.2d 787 (Fla. 1st DCA 1980); Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980). Mere physical presence of the child within a state is not generally sufficient by itself to confer jurisdiction to make a child custody determination. § 61.1308(2). Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1979).

In the instant case the trial court assumed jurisdiction under subsection 61.1308(1)(b)1 and 2, determining that its exercise of jurisdiction would be in the best interest of the children. The district court found a sufficient predicate for the trial court's assumption of jurisdiction. The district court recognized the father's argument that the UCCJA controlled the case and would deprive Florida of jurisdiction, but went on, however, to comment that

neither party comes before this Court with clean hands, and somewhere someone has to make an attempt to stop the childnapping and determine what is in the best interests of the children.

395 So.2d at 195. Preventing further harm to the children involved is the guiding aim of the UCCJA, see § 61.1304, and we agree that the jumping back and forth from court to court must stop.

We find that the circuit court should have refused the case because the Idaho court had already followed the UCCJA in making its determination, presumably in the best interest of these children. These children appear to have no "home state." They had resided in Idaho for less than six months prior to their father being given temporary custody, but, likewise, they had been in Florida for less than six months when the circuit court gave their mother custody. Moreover, we do not find that this case meets the significant connection test set out in section 61.1308(1)(b). Compare Reeve v. Reeve, 391 So.2d 789 (Fla. 1st DCA 1980).

This case is similar to Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979), where the father voluntarily appeared in an Alabama custody proceeding, suffered an adverse ruling, took the child, and proceeded to litigate anew in Florida. The fourth district correctly held that the circuit court should have deferred to the Alabama courts and should have refused to exercise its jurisdiction. The second district came to the same conclusion on similar facts in Wheeler v. Wheeler, 383 So.2d 655 (Fla. 2d DCA 1980). We approve Detko/Roberts and Wheeler.

In the instant case the mother voluntarily appeared in the Idaho court proceeding and, following an adverse ruling, removed the children from Idaho in violation of a court order. ² Although the father had originally taken the children unilaterally, we find this to be no justification for the mother's doing likewise, especially when she flaunted a court order in taking the boys away. See Bias v. Bias, 374 So.2d 64 (Fla. 3d DCA 1979). At the risk of sounding trite, we reiterate that two wrongs do not make a right. Here, however, the wife engaged in exactly the kind of conduct which the UCCJA was designed to discourage. Because the Idaho court had jurisdiction of this custody proceeding and because the mother violated the clean hands provisions of section 61.1318, ³ we find that the circuit ...