Thomas v. Thomas
| Decision Date | 27 January 1999 |
| Docket Number | No. 97-2653.,97-2653. |
| Citation | 724 So.2d 1246 |
| Parties | Robert THOMAS, Appellant, v. Karen Jurban THOMAS, Appellee. |
| Court | Florida District Court of Appeals |
Viktoria L. Gres, Key Biscayne, for appellant.
Karen O'Brien Steger of Law Offices of Steger & Steger, P.A., Stuart, for appellee.
In this appeal involving difficult questions of child custody, the order now engaging our review denies a motion to transfer a pending modification of child custody case to Ohio. We recognize jurisdiction under rule 9.130 to review this order as a determination in the nature of venue, reverse the trial court, and direct that the pending custody case be dismissed in favor of a more convenient forum in the Common Pleas Court in Ohio.
The history of this case really began outside of Florida. Several years ago, the parents filed a joint petition for dissolution of marriage in Ohio. In a separation agreement there, they agreed that the father was the residential parent of their daughter, Angela, and that the child could spend the summer with the mother. Soon afterwards the mother took Angela to Florida, ostensibly for only a two-week vacation. Never intending to return with Angela to Ohio, she instead established residency in Florida and filed a petition for dissolution of marriage in the Nineteenth Judicial Circuit in Martin County. In spite of the fact that she did not allege anything about their child and failed to serve the father with process, he was able to locate her and appear in the Florida action.
At some point allegations arose that the mother had failed to provide adequate food or shelter for Angela in this state and had knowingly allowed her to be abused by the mother's boyfriend (now her husband). In time Angela was taken into custody by HRS and became a temporary ward of the state. The mother and friend were charged with felony child abuse, and they pleaded no contest to two misdemeanor counts. Angela being in custody of the Florida authorities, the father submitted to the jurisdiction of the Florida court in the dissolution proceedings. In an interim order, the court awarded temporary custody to the father in Ohio and did not permit the mother to have visitation except through the supervision of HRS or Ohio Family Services.
The final judgment entered here in Florida in 1994 designated the father as the primary residential parent and Ohio as the place of custody.1 At that time the mother was on probation from the child abuse conviction. The court expressly found that the mother was unlikely to allow the father to have frequent and continuing contact with Angela, and correspondingly that the father was more likely to permit the mother to have continuing visitation. The court found that the father lived near his mother, a retired elementary school teacher, just outside Lima, Ohio, and that the grandmother, as well as the father's sister, continued to provide substantial assistance to the father in caring for Angela while the father is working. The court found that the father had a stable family relationship in that area, while the mother has had a succession of addresses in south Florida, and has also had a succession of live-in friends. In fact the court found that the mother had left Angela alone with her current friend even after she had been told of his physical abuse of the child and her stepsister.
In awarding the father primary residential custody, the court allowed the mother only limited visitation with Angela and, at first, only in Ohio. She was required to give 48 hours notice of any visits. She was not allowed overnight visitation, and her boyfriend could not be present during any of her visits. The father was allowed to name someone to supervise the mother's visits. The court allowed 10 days summer visitation in 1994 and 15 days in 1995, and the cost of Angela's travel was to be borne by the mother. The father and daughter have since continuously resided in Ohio, have not resided in Florida, and all the evidence concerning Angela's current circumstances is in Ohio. The court also found that the mother had net income of $1,020 monthly, while the father had $900 monthly. Accordingly, the court ordered the mother to pay the father $174 monthly in child support.
Some two years after the final judgment the mother filed the present modification proceedings seeking custody of Angela. She alleges a substantial change in circumstances in that she has now finished probation and has completed all her parenting and counseling courses required by the court in her criminal case. She further alleges that Angela's older stepsister lives with her on a full time basis. Alleging that the father has hidden Angela and has failed to allow the mother any contact with her, she also claims that the child spends a substantial amount of time with the grandmother and therefore that the father does not have actual custody. The visitation schedule set out in the final judgment, she contends, does not allow sufficient contact with Angela, and she is now able to provide the child with stability and a good home with a stepsister.
The father served a response denying most allegations in her petition. He also filed his own petition seeking a modification of child support. With both modification proceedings at issue, the mother noticed the case for trial. The father then filed a motion to dismiss or transfer the entire case to Ohio on the grounds that he and child have never resided in Florida; that all of the evidence regarding Angela is in Ohio where he and the child reside; that all of the witnesses knowledgeable about Angela's current welfare are in Ohio; and that it would be much less expensive to try the modifications in Ohio rather than transporting the witnesses and evidence to Florida.
At a hearing on the motion to transfer, the mother's lawyer agreed that the father and child have always lived in Ohio and conceded that all the witnesses were in Ohio.2 The judge responded by pointing out that, with no dispute as to the critical facts on the inconvenience of venue in Florida, the question was really a legal one. The parties agreed with that characterization. Both parties having submitted memoranda, the court took the matter under advisement. Later the court entered the order we review today.
We first address the question of our jurisdiction. Under the former Florida Appellate Rule 4.2 (1962), a party could take an interlocutory appeal of orders "relating to venue." Under this old rule, an order denying a motion to dismiss on grounds of forum non conveniens was an order relating to venue. Southern Ry. Co. v. McCubbins, 196 So.2d 512 (Fla. 3d DCA 1967). When the supreme court adopted the Florida Rules of Appellate Procedure in 1978, see In Re Proposed Appellate Rules, 351 So.2d 981 (Fla. 1977), the new rule changed the wording relating to nonfinal appeals on venue orders, saying that the district courts have jurisdiction to review nonfinal orders "that concern venue [e.s.]."3 Although the text was different, the idea seems the same.
In Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982), however, we held that we lack jurisdiction under rule 9.130(a)(3)(A) to review orders denying motions to transfer custody proceedings to another state. The parties in Bedingfield resided in Georgia, and the divorce case was first begun there. At a hearing on temporary custody the Georgia judge made an oral ruling giving the father liberal visitation. Before the written order could be entered, the wife dismissed the proceeding and took the children with her to Florida. While proceedings were continuing in Georgia, the court there having allowed the father to file a counterpetition for divorce, he located the mother and children in Florida. He then filed a petition here to enforce the Georgia court order on custody and visitation, and the mother responded with her own petition for dissolution of marriage in Florida along with a prayer for custody. The father moved to dismiss the mother's counterpetition on the basis of the UCCJA.4 In ruling on our jurisdiction to review the order, we said:
The panel was divided, and Judge Hurley did not agree with that reasoning. In dissent he wrote:
To continue reading
Request your trial
-
Shooster v. BT Orlando Ltd. Partnership
...Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982), rev. dism., 427 So.2d 736 (Fla.1983), receded from on other grounds, Thomas v. Thomas, 724 So.2d 1246 (Fla. 4th DCA 1999); Gillis v. Gillis, 391 So.2d 772 (Fla. 3d DCA 1980). We find that under Florida procedural law the federal court exercis......
-
Weg Industrias v. Compania De Seguros, 3D05-1801.
...how they have jurisdiction to review either grants or denials of motions to dismiss on forum non grounds. See e.g., Thomas v. Thomas, 724 So.2d 1246, 1248 (Fla. 4th DCA 1999)(citing McCubbins and R.App. P. 9.130(a)(3)(A) without explanation); Four Star Resorts Bahamas, Ltd. v. Allegro Resor......
-
Hirsch v. DiGaetano, 99-210.
...multiplicity of suits. Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982), receded from on other grounds, Thomas v. Thomas, 724 So.2d 1246 (Fla. 4th DCA 1999). Absent extraordinary circumstances which do not exist in this case, a trial court abuses its discretion when it fails t......
-
Gonzalez v. Ayala, 5D05-3200.
...been brought." Forum non conveniens, by its very nature, of course, encompasses both the statute and the rule. See Thomas v. Thomas, 724 So.2d 1246 (Fla. 4th DCA 1999). Courts have, accordingly, followed the same general procedures in applying section 47.122 and Rule 1.061. See Botton v. El......
-
Winning the "race to the courthouse": the principle of priority.
...417 So. 2d 1047 (Fla. 4th DCA 1995), rev. dism., 427 So. 2d 736 (Fla. 1983), receded from on other grounds, Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999), in its narrowest sense, the principle applies only to courts "within one sovereignty." However, although the "principle is not a......
-
The application of Kinney System, Inc. v. Continental Ins. Co. to modification of child custody proceedings.
...relevant to the case. Personal jurisdiction over all of the parties is not a factor listed in [section]61.520(2). In Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999), (43) the Fourth District Court of Appeal considered, among other issues, a conflict in its precedents with respect to t......