Porter v. Porter, 3D05-1026.
| Decision Date | 12 October 2005 |
| Docket Number | No. 3D05-1026.,3D05-1026. |
| Citation | 913 So.2d 691 |
| Parties | Elizabeth L. PORTER, Appellant, v. Bradley K. PORTER, Appellee. |
| Court | Florida Supreme Court |
Schweitzer & Schweitzer-Ramras and Darlene Schweitzer-Ramras, Miami, for appellant.
Ned I. Price and Beth M. Terry (Jacksonville), for appellee.
Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
Elizabeth L. Porter ("former wife") appeals an order granting Bradley K. Porter's ("former husband") Motion to Dismiss for Improper Venue ("Motion to Dismiss"). As we conclude that venue is proper in Miami-Dade County, we reverse and remand with instructions to reinstate the former wife's "Supplemental Complaint to Establish Foreign Decree as a Florida Judgment and Former Wife's Verified Petition for Modification and a Motion for Contempt and for Enforcement of Final Judgment" ("Complaint").
In November 2002, the parties entered into a final judgment of dissolution of marriage in the Fourth Judicial Circuit in Duval County, Florida ("Duval Circuit Court"). The parties have two minor children, and the former wife is currently residing in Miami-Dade County with the children, while the former husband resides in Duval County.
Following the dissolution of marriage, the parties filed motions for contempt in the Duval Circuit Court, and on November 12, 2003, the court entered an order denying the former wife's motion for contempt and granting the former husband's motion for contempt. This order set forth a visitation schedule between the parties for the months of November 2003, December 2003, and January 2004, whereby the former husband was granted visitation with his children for a specific weekend each month. Pursuant to this order, the parties were to exchange the children in Vero Beach for the November 2003 visitation, and the wife was required to drop off the children at the former husband's home in Jacksonville for the December 2003 and January 2004 visitations. The order further provided that the "Court reserves jurisdiction to modify and enforce the terms of this Order where appropriate and allowed by law." Additionally, the former wife was awarded $250.00 in attorney's fees.
On November 18, 2003, the former wife filed an amended motion for rehearing directed at the November 12, 2003 order. In the motion for rehearing, the former wife requested that the trial court reconsider its decision as to the exchange point for the months of December 2003 and January 2004, requesting that the exchange take place in Vero Beach, not in Jacksonville. In doing so, the former wife explained that she did not have transportation available to drive to Jacksonville for those two months.1 The parties do not dispute that the former wife never sought to have this motion heard and that the trial court never ruled on the motion.
Some time prior to February 5, 2004, the former husband filed a second motion for contempt based upon the former wife's failure to comply with the visitation schedule set forth in the November 12, 2003 order, as she missed the November 2003 visitation.
On February 5, 2004, the Duval Circuit Court entered an order finding the former wife in contempt for not complying with its November 12th order regarding the November 2003 visitation, but withheld adjudication pending compliance with the new order it was entering. The February 2004 order provided a visitation schedule for the months of February and March 2004, and stated that the "former husband is entitled to have make-up visitation with the children." As in the previous contempt order, the trial court reserved jurisdiction for the purpose of enforcing the terms of the order.
In January 2005, the former wife filed her Complaint in the Eleventh Judicial Circuit in Miami-Dade County, Florida ("Miami-Dade Circuit Court"). On March 8, 2005, the former husband filed his Motion to Dismiss, alleging that pursuant to Amir v. Gannon, 896 So.2d 793 (Fla. 5th DCA 2005), the Miami-Dade Circuit Court was the improper venue to consider the former wife's Complaint.
On March 29, 2005, the former husband filed in the Duval Circuit Court a Motion for Contempt, Enforcement and Request for Attorney's Fees and Costs. On March 30, 2005, he also filed in the Duval Circuit Court a "Motion for Reconsideration and/or Set Aside the Attorney's Fee Provision of the November 12, 2003 Order and Motion for Ruling on Former Wife's Amended Motion for Rehearing on the November 12, 2003 Order" ("Motion for Ruling").
On March 31, 2005, the Miami-Dade Circuit Court heard the former husband's Motion to Dismiss. The former husband argued that enforcement proceedings were pending in the Duval Circuit Court because the former husband had filed a motion for contempt and a request for attorney's fees, and that these motions were still pending before the Duval Circuit Court. In response, the former wife argued that when she filed her Complaint in the Miami-Dade Circuit Court, no enforcement proceedings were pending in the Duval Circuit Court and that the former husband's motion for contempt was filed after the former wife filed her Complaint in the Miami-Dade Circuit Court. The former wife also argued that the fact the Duval Circuit Court reserved jurisdiction in its two contempt orders does not mean that an action is pending. Neither party argued or even mentioned that the former wife had filed a motion for rehearing in Duval County which had not been ruled upon or that the former husband's Motion for Ruling in Duval County was filed subsequent to the former wife's Complaint filed in Miami-Dade County and only one day prior to the March 31, 2005 Miami-Dade hearing.2
On April 4, 2005, the Miami-Dade Circuit Court granted the former husband's Motion to Dismiss for Improper Venue, relying in part on Amir and Ingrahm v. Ingrahm, 711 So.2d 1346 (Fla. 5th DCA 1998), which held that "[o]nce... enforcement proceeding was undertaken in an appropriate venue, venue was improper in a different county over the subsequently filed petition to modify the same decree which was the subject of the enforcement proceedings." Ingrahm, 711 So.2d at 1346. The trial court also found that
The former wife contends that the trial court erred by granting the former husband's Motion to Dismiss where there were no proceedings pending in the Duval Circuit Court when she filed her Complaint in Miami-Dade County. We agree.
The former husband acknowledges that the trial court erred by relying on his third motion for contempt when granting the Motion to Dismiss because this motion for...
To continue reading
Request your trial