Pestana v. Pestana, BF-457

• Decision Date: 10 April 1986
• Docket Number: No. BF-457,BF-457
• Citation: 486 So.2d 666,11 Fla. L. Weekly 845
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 845 Hugo D. PESTANA, Appellant, v. Gudelia R. PESTANA, Appellee.

Page 666

486 So.2d 666

11 Fla. L. Weekly 845

Hugo D. PESTANA, Appellant, v. Gudelia R. PESTANA, Appellee.

No. BF-457.

District Court of Appeal of Florida,

First District.

April 10, 1986.

Robert B. Staats, Panama City, for appellant.

Stan Trappe, of Trappe & Dusseault, P.A., Panama City, for appellee.

SHIVERS, Judge.

The appellant/husband attacks the trial court's jurisdiction to enter a final judgment of dissolution of marriage, awarding the appellee/wife custody of the parties' four minor children, child support, lump sum alimony, a special equity in the husband's retirement benefits, costs and attorney's fees. We conclude that the awards of child custody, child support and lump sum alimony were proper. We reverse, however, the awards of special equity, costs and attorney's fees.

The facts are as follows. The parties to this action are both Colombian Nationals who were married in Colombia in 1968, but who have lived in the United States since 1970 and in Bay County, Florida since 1978. All four of their minor children were born in the United States and lived with the parties in Bay County from 1978. On September 17, 1984, the parties separated, resulting in the husband taking the four children from the home without the wife's consent. As of the date of the final hearing on February 28, 1985, the wife had not seen appellant or the children since September 17, 1984, and believed them to be living in Colombia.

On September 20, 1984, appellee filed her first petition for dissolution of marriage but was unable to obtain personal service of process over the appellant. She then filed an amended petition, as well as an affidavit of diligent search and inquiry and a notice of action, pursuant to the constructive notice provisions of Chapter 49, Florida Statutes (1983). Both the amended petition for dissolution and the notice of action contained specific descriptions of the parties' real and personal property located in Bay County. Appellant's attorney made a special appearance for the purpose of objecting to the court's jurisdiction on November 6, 1984. However, appellant failed to file any defenses to the petition and, on February 28, 1985, a default was entered against him. After final hearing on the matter, the trial court entered an order dissolving the marriage and awarding the appellee child custody, child support, lump sum alimony, a special equity in appellant's retirement funds, costs and attorney's fees. The lump sum alimony award consisted of the husband's interest in both real and personal property located in Bay County, Florida.

First, appellant contends that since the children were not physically present within the state of Florida after September 17, 1984, the trial court lacked jurisdiction to award their custody to appellee. We disagree. The Uniform Child Custody Jurisdiction Act, which was adopted by Florida in 1977, specifically provides that physical presence of the child within the state is not required for a determination of his custody. Section 61.1308(3), Florida Statutes (1983). A court has jurisdiction to determine child custody 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.

The child's "home state" is defined in section 61.1306 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.

Since it is clear from the record that Florida was the "home state" of the four minor...