Tobkin v. State

• Decision Date: 14 February 2001
• Docket Number: No. 4D00-2204.,4D00-2204.
• Citation: 777 So.2d 1160
• Parties: Marilyn Byrd TOBKIN, Wife, and Donald Alan Tobkin, Husband, Petitioners, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

777 So.2d 1160

Marilyn Byrd TOBKIN, Wife, and Donald Alan Tobkin, Husband, Petitioners, v. STATE of Florida, Respondent.

No. 4D00-2204.

District Court of Appeal of Florida, Fourth District.

February 14, 2001.

Marilyn Byrd Tobkin and Donald Alan Tobkin, Hollywood, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale, for respondent.

STEVENSON, J.

This is a joint petition for writ of prohibition filed by the parties to an action for an injunction for protection against domestic violence and a subsequently-filed dissolution of marriage action. The parties have apparently reconciled and the petitioner-wife filed voluntary dismissals in both actions. Now, the parties have jointly filed this petition for writ of prohibition seeking to prevent the trial judge from continuing to exercise jurisdiction in the cases. Because the voluntary dismissal divested the court of jurisdiction to continue to act in the cases, we grant the petition.

Procedural history

On April 14, 2000, the wife, Marilyn Tobkin, filed a petition for an injunction against domestic violence, alleging physical and emotional abuse directed toward her by the husband, Donald Tobkin. The injunction action was assigned case number 00-6577, and a Broward county judge issued an ex parte temporary injunction against domestic violence on April 14, 2000. The order gave the wife exclusive use and possession of the marital home and temporary custody of the children. The order on the temporary injunction required the parties to appear for a subsequent adversary hearing on April 28, which was to be held before Judge Cohen. Prior to the April 28 hearing, the wife filed a petition for dissolution of marriage and, in the petition, asked for an extension of the temporary injunction against domestic violence. The dissolution case was assigned case number 00-7266.

On May 12, 2000, Judge Korda held a hearing on the wife's motion for extension of the temporary injunction (filed under the dissolution case number) during which the wife, her attorney, Robert Schwartz, and the husband's attorney, Karen Amlong, were present. There is nothing in the record on appeal suggesting that the previously scheduled April 28 hearing on extension of the temporary injunction, which was scheduled in the injunction case (case # 00-6557), ever took place. At the May 12 hearing, the wife testified about the alleged domestic violence. The court inquired as to whether a petition for dissolution had been filed, and the wife's attorney informed the trial judge that the parties were "traveling on" the petition for dissolution. On May 17, the court entered an order bearing the dissolution case style and number, extending the temporary injunction, providing for supervised visitation for the husband with the children, and requiring both the husband and the wife to attend Glass House, a domestic violence center.

On May 26, the husband filed a motion in the dissolution case seeking to abate the dissolution and the domestic violence proceedings while the parties attempted "private" reconciliation. On June 6, the trial court entered an agreed order abating the proceedings for 90 days to allow for attempted reconciliation and suspending the temporary injunction, conditioned on the husband enrolling with the Glass House within 48 hours and completing the domestic batterers' course, and on both parties attending weekly counseling sessions. This June 6 agreed order was applicable to both the domestic violence injunction and the dissolution action. On the next day, June 7, the wife attempted to discharge her lawyer, Robert Schwartz, by "e-mail" communication and filed a pro se notice of voluntary dismissal of both the dissolution and the injunction actions. On June 8, after receiving the notice, the trial judge sent the wife's attorney a copy of the notice of dismissal along with a letter stating:

Enclosed please find a copy of a Notice of Voluntary Dismissal and letter dropped off at my office yesterday by your client.

Please advise your client, Ms. Tobkin, that the order to attend the Glass House I signed on Tuesday, June 6, 2000, is still in effect and shall be enforced on her and her husband.

Additionally, this case is not dismissable until all orders have been complied with.

On June 26, petitioners filed the present prohibition petition under the dissolution case number, asking this court for extraordinary relief prohibiting the trial judge from proceeding further in the actions. In particular, the petition challenged the trial judge's ability to hold a previously scheduled July 6, 2000 hearing on the husband's motion to disqualify the wife's counsel, and on the motion of the wife's counsel to withdraw. Although only the dissolution case number is used, the parties address both the dissolution and injunction cases.¹ And, the June 6 order agreed to by all the parties—the trial court's enforcement of which petitioners are seeking to prohibit— addresses both cases. On July 6, this court entered an order to show cause, which automatically stayed the trial court proceedings. See Fla. R.App. P. 9.100(h).

On July 18, 2000, subsequent to the issuance of the order to show cause by this court, the trial court entered an order of clarification of the June 6 order abating the injunction and dissolution actions. In this clarification order, the trial court indicated that despite the attempted voluntary dismissal of the domestic violence case, the parties would still be required to comply with the June 6 order in all respects, including both parties attending weekly counseling sessions and the husband enrolling in the batterers' intervention program. In their later-filed reply to the attorney general's response, the petitioners also challenge this order.

We agree with petitioners that the voluntary dismissals divested the trial judge of authority to continue with further proceedings on the wife's attorney's motion to withdraw, the husband's motion to disqualify the wife's counsel, and enforcement of the previously-ordered requirement of counseling and attendance at the spouse batterers' program. No permanent injunction requiring counseling or attendance at the Glass House was ever entered. Of course, a voluntary dismissal does not divest the court of jurisdiction to conclude ancillary matters involved in the case such as outstanding and unresolved motions for attorney's fees and costs, and similar issues. These ancillary matters would include unresolved contempt of court matters. See Wells v. State, 654 So.2d 145 (Fla. 3d DCA 1995)

.

The jurisdictional issue here is not one of subject matter jurisdiction, which the court clearly has.² Rather, the issue is whether the trial judge, after the voluntary dismissal in this case, still has the power to preside over this particular dispute between the parties. This court noted in T.D. v. K.D., 747 So.2d 456, 457 n. 2 (Fla. 4th DCA 1999), that the word "jurisdiction" ordinarily refers to "subject matter" or "personal" jurisdiction, but there is a third meaning ("case" jurisdiction) which involves the power of the court over a particular case that is within its subject matter jurisdiction. "Case" jurisdiction is involved here because the trial court clearly has jurisdiction over the subject matter. A writ of prohibition is the proper claim for relief in this case. See English v. McCrary, 348 So.2d 293, 296 (Fla.1977)

; Derma Lift Salon, Inc. v. Swanko, 419 So.2d 1180 (Fla. 3d DCA 1982).

The dissolution action

There should be little doubt that the dissolution action may be voluntarily dismissed without leave of court. The wife's notice of dismissal was filed in accordance with Florida Rule of Family Procedure 12.420(a). That rule provides that dismissal of family-law actions shall be governed by Florida Rule of Civil Procedure 1.420. The latter rule provides in part:

(a) Voluntary Dismissal

(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action.

Florida courts have determined that this right to dismiss is almost absolute. See Fears v. Lunsford, 314 So.2d 578 (Fla.1975); Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970); see also Perez v. Winn-Dixie, 639 So.2d 109 (Fla. 1st DCA 1994)

. An exception to this absolute right arises where the party taking the voluntary dismissal perpetrates a fraud on the court. See Select Builders of Fla., Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979). Another exception involves cases where the court has assumed jurisdiction and significant child custody issues are left unresolved. See Chapnick v. Hare, 394 So.2d 202 (Fla. 4th DCA 1981); Cooper v. Cooper, 194 So.2d 278 (Fla. 2d DCA 1967). In the present case, there is no indication that the petitioner wife is perpetrating a fraud on the court, and there are no unresolved or pending child custody issues involved. The wife had the right to voluntarily dismiss the dissolution action.

The domestic violence injunction action

The wife's right to voluntarily dismiss the action for a domestic violence injunction presents a thornier issue, but the result is the same. Section 741.30, Florida Statutes (1999), creates a private right of action for an injunction against domestic violence. Any person who is the victim of domestic violence as defined in the statute may file a sworn petition for an injunction for protection against domestic violence....