Suarez Ortega v. Pujals de Suarez, s. 83-2765

• Decision Date: 19 March 1985
• Docket Number: Nos. 83-2765,84-165,s. 83-2765
• Citation: 10 Fla. L. Weekly 744,465 So.2d 607
• Parties: 10 Fla. L. Weekly 744 Augusto SUAREZ ORTEGA, Appellant, v. Margaret Rose PUJALS de SUAREZ, Appellee.
• Court: Florida District Court of Appeals

Page 607

465 So.2d 607

10 Fla. L. Weekly 744

Augusto SUAREZ ORTEGA, Appellant, v. Margaret Rose PUJALS de SUAREZ, Appellee.

Nos. 83-2765, 84-165.

District Court of Appeal of Florida Third District.

March 19, 1985.

Hall and O'Brien and Andrew Hall, Miami, for appellant.

Yvette G. Murphy, Coral Gables, for appellee.

Before BARKDULL, HUBBART and FERGUSON, JJ.

FERGUSON, Judge.

These appeals involve the validity of certain orders entered in a child custody dispute.

The parties were married in Virginia in 1971. Shortly thereafter they moved to Mexico which had been the husband's place of residence prior to the marriage. At all times prior to commencement of the proceedings out of which this appeal arises (except for several months in 1977-78 when they returned to the United States so that the child could be born with dual citizenship), the parties resided in Mexico.

Appellee/wife initiated support proceedings in Mexico in September, 1981, after the parties began to experience marital difficulties, but withdrew the petition in December, 1981. On June 6, 1982, she brought the child to Florida. Sixteen days later she filed a petition for child custody, also seeking a restraining order against appellant/husband. After an ex parte hearing on the same day, the court granted the relief sought. A copy of the order was allegedly mailed to the husband but he claims to have never received it.

In November, 1982, the husband was granted provisional custody of the child by a Mexican court. On December 7, 1982, he filed in the Florida action a petition for habeas corpus contending that the Florida court had no jurisdiction to adjudicate the wife's claim for custody because Mexico was the child's home state. He later filed a motion to dismiss wife's petition for dissolution, alleging as one ground that the court was without subject matter jurisdiction. These appeals are brought from orders which deny his habeas corpus petition and motion to dismiss.

The appellant/husband contends that the "home state" of the child was Mexico and therefore under the Uniform Child Custody Jurisdiction Act [the UCCJA], the Florida court should have deferred to the Mexican provisional order of custody. He also argues that no personal jurisdiction was ever obtained over him in Florida and therefore the trial court was without the authority to award temporary support.

The appellee/wife responds to the first issue alleging that the husband abandoned her and the child in Mexico, that the domicile of the child under Mexican law was the same as hers, and that as an abandoned spouse under Mexican law she was free to depart Mexico. As to the second issue she responds that the husband, by filing his petition for habeas corpus, sought affirmative relief in the court of Florida and thereby submitted himself to this state's jurisdiction for all purposes. The wife further urges that the award of temporary custody should be sustained because the power to decline to exercise jurisdiction in cases of child-snatching or other wrongdoing, see § 61.1318(1), Fla.Stat. (1983), is discretionary.

The UCCJA applies to this cause pursuant to section 61.1348, Florida Statutes (1983), which extends the general policies of the act to decrees of other nations "if reasonable notice and opportunity to be heard were given to all affected persons." Although the Mexican provisional custody decree was obtained by the husband after an ex parte hearing, this procedure is the same as that followed in Florida. There has been no showing that the Mexican court will not accord minimum due process when ruling on the issue of permanent child custody.

Under the UCCJA, Florida clearly has no jurisdiction to determine child custody. Wife's argument that the trial court has jurisdiction because the parent and child have "a significant connection with this state," § 61.1308(1)(b)1., Fla.Stat. (1983), fails because it is totally unsupported by the evidence. There is no question but that Mexico, and not Florida, is the child's home. See Brown v. Tan, 395 So.2d 1249, 1252 (Fla. 3d DCA 1981). Neither has it been shown that Mexico would not exercise jurisdiction in accordance with principles embodied in the UCCJA. See §§ 61.1302-61.1348, Fla.Stat. (1983). The authority of the trial court in this case rested solely on the fact that the wife, obviously seeking a friendlier forum, brought the child to this state. We have previously found a lack of jurisdiction in similar factual circumstances. See Al-Fassi v. Al-Fassi, 433 So.2d 664 (Fla. 3d DCA 1983), rev. denied, 446 So.2d 99 (Fla.1984).

As an alternative defense of the Florida court's exercise of subject matter jurisdiction, the wife claims that her husband abandoned the Mexico marital domicile. The trial court made no finding of abandonment, moreover, the facts show no more than a physical separation. During the period of separation, and continuing up to the date when the wife left Mexico, the parties were engaged in child custody feuds. Nonetheless, the husband continued to contribute to the support of the wife and child. Under Florida law there is not the slightest proof of an abandonment, which is evidenced by desertion or the withholding of support. See generally State v. Darnell, 230 So.2d 151, 152 (Fla.1970); § 856.04, Fla.Stat. (1983).

The wife argues further that the husband submitted himself and the subject matter of the action to the jurisdiction of the Florida court when he filed a petition for habeas corpus to have the child returned to Mexico. The argument is without merit. As a general rule, a habeas corpus proceeding is an independent civil action designed to secure a prompt determination as to the legality of a restraint in some form. Crane v. Hayes, 253 So.2d 435, 439 (Fla.1971). If the court was without jurisdiction to determine custody of the minor child under chapter 61, Florida Statutes (1983), a habeas corpus petition challenging the exercise of jurisdiction to determine custody could not confer jurisdiction. See Brown v. Tan, 395 So.2d 1249, 1252 (Fla. 3d DCA 1981).

Wife's last argument is that the Mexican provisional custody decree obtained by the husband is invalid because the husband falsely represented to the Mexican court that the wife and child were in that country at the time he sought the decree. Although Florida courts may refuse to enforce a decree which has been procured by fraud, see Lanigan v. Lanigan, 78 So.2d 92, 94 (Fla.1955), the alleged fraudulent misrepresentations made upon the Mexican court could not confer jurisdiction on the Florida court to grant affirmative relief. See Bonis v. Bonis, 420 So.2d 104 (Fla. 3d DCA 1982), rev. denied, 430 So.2d 450 (Fla.1983) (an alleged child-snatching in foreign state, without more, is not an independent basis for Florida court's exercise of jurisdiction). The challenge to the provisional custody decree based on fraud is properly directed to the Mexican court.

The two orders are reversed and the cause is remanded with instructions to grant appellant/husband habeas corpus relief, and dismiss the appellee/wife's petition for the reason that the Florida court is without subject matter jurisdiction.

BARKDULL, Judge, dissenting.

I respectfully dissent. These appeals involved the validity of certain orders entered in a child custody dispute.

The parties to this cause were married in the State of Virginia in 1971. They moved to Mexico in September, 1972, where the husband's family resided. In 1977 the parties returned to the United States so that their child could be born in the United States. A son was born on August 23, 1977, in the State of Maryland. The parties and their newborn resided in Arlington, Virginia until early 1978 when they returned to Mexico. While in Mexico they resided in an apartment in Mexico City. Because of marital difficulties the parties separated in the spring of 1981. At this time the husband took the child from his mother and she did not know his whereabouts for some two weeks. Except for this period the child, since birth, has always been in the physical custody of the mother.

From the time the husband left the marital home in the spring of 1981 until June of 1982 the wife continued to reside in the apartment in Mexico City with the child. In late May or early June of 1982 the wife learned that the husband, after requesting her to pack all the child's belongings for a temporary visit with him, was going to cease paying the rent for the apartment, was going to cut off her funds and take her automobile. As a result of these threats, on June 6, 1982, she left Mexico with the child and came to Florida where her parents and other relatives resided. On June 22, 1982, she filed in the Circuit Court of the Eleventh Judicial Circuit a sworn petition for temporary custody and restraining order. ¹ On that date the trial judge entered an order confirming custody of the child in her and enjoined the husband from removing the child from the jurisdiction. After the husband learned of the wife's proceeding he commenced an action in the courts of Mexico and was granted provisional custody of the child on November 16, 1982. On December 7, 1982, the husband filed a petition for writ of habeas corpus in the cause in the trial court. Thereafter in February, 1983, the habeas corpus petition came on for hearing before the same trial judge that had earlier confirmed custody in the wife and he continued the hearing pending further evidence. Next the wife, in the spring of 1983, filed in the original temporary custody proceeding, (which now included the habeas corpus petition) a petition for dissolution of marriage. A copy of this new petition was served on the husband by service of publication. His Florida counsel were served with copies of the petition and the proof of publication. To this petition the husband filed a motion to dismiss, grounded upon the lack of jurisdiction over the subject matter and lack of jurisdiction over the person. The...