Williams v. Starnes, 87-3346

• Decision Date: 16 March 1988
• Docket Number: No. 87-3346,87-3346
• Citation: 522 So.2d 469,13 Fla. L. Weekly 737
• Parties: 13 Fla. L. Weekly 737 George WILLIAMS, Petitioner, v. The Honorable Hugh E. STARNES, Respondent.
• Court: Florida District Court of Appeals

Page 469

522 So.2d 469

13 Fla. L. Weekly 737

George WILLIAMS, Petitioner, v. The Honorable Hugh E. STARNES, Respondent.

No. 87-3346.

District Court of Appeal of Florida,

Second District.

March 16, 1988.

Alan J. Rubinstein, of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for petitioner.

Joseph P. Hoffman, of Mockler & Engvalson, Fort Myers, for petitioner-below Jean Williams.

PER CURIAM.

Petitioner seeks a writ of prohibition to prevent the Lee County Circuit Court from exercising jurisdiction over a petition for modification of dissolution, which dissolution was originally entered in the Hillsborough County Circuit Court. The petition for modification was originally pleaded as a petition for dependency and filed in the juvenile division of the Lee County Circuit Court. For the reasons that follow, we grant the petition, quash the order of the circuit court, and remand with directions to transfer the case back to the juvenile division for further proceedings consistent with this opinion.

The record reveals the following facts. The Hillsborough County Circuit Court granted petitioner (the husband) and his former wife a dissolution of marriage in June 1982. According to the terms of the final judgment of dissolution, the husband was granted custody of the three children of the marriage and the wife was granted visitation. The husband and children moved to Dade County; the wife moved to Lee County.

On October 14, 1987, the wife filed a sworn "petition for dependency" in the juvenile division of the Lee County Circuit Court. This petition alleged that on September 17, 1987, the husband had sent two of the children to her and directed her to enroll them in Lee County schools. The petition further alleged that the husband had failed to contact the children since that date, and that he had provided only marginal support for them since they had been in Lee County. Thus, the petition alleged, the husband had abandoned and psychologically abused the children within the meaning of section 39.01, Florida Statutes (1983), and it would be in the best interests of the children if the wife were awarded custody of them. On October 15, 1987, the trial court entered an ex parte preliminary injunction, awarding the wife temporary custody of the children and directing the husband not to remove the children from Lee County.

At the October 26, 1987, hearing on the wife's petition for dependency, the attorneys for the parties advised respondent, the trial judge, of an agreement they had reached whereby the case would be transferred to the Lee County Circuit Court for post-dissolution proceedings. On October 29, 1987, the trial judge entered an order which transferred the case from the juvenile to the family division of the Lee County Circuit Court. The order further stated that the original petition for dependency, by agreement of the parties, would be henceforth determined to be a petition for modification of the final judgment of dissolution and that the juvenile case would be abated. Finally, the order granted the wife continued temporary custody of the two children, and provided for other various visitation rights and responsibilities.

Thereafter, the wife filed a motion for temporary support. On November 12, 1987, the husband, represented by new counsel, filed an amended motion to dismiss for lack of jurisdiction and to vacate the temporary custody order. The motion alleged that the Lee County Circuit Court was without jurisdiction to hear the matter as the Hillsborough County Circuit Court granted the final judgment of dissolution. The motion requested that the case be transferred at the wife's expense to the circuit court in Hillsborough County; that the temporary custody order be vacated; and that custody of the two children be returned to the husband under the terms of the original judgment of dissolution.

At the November 25, 1987, hearing on the husband's motion to dismiss, the trial judge acknowledged that because the Hillsborough County Circuit Court had granted the original dissolution in this case, that it, not he, had exclusive jurisdiction to modify that judgment. Nevertheless, the trial judge determined that he did have jurisdiction to modify the original final judgment because the parties had agreed to transfer the case to the family division of the Lee County Circuit Court, thereby waiving any jurisdictional defects. Thereafter, the trial judge entered his order denying the husband's motion to dismiss, and this petition for writ of prohibition followed.

Initially, we observe that while personal jurisdiction may be waived, see Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981), rev. denied, 417 So.2d 329 (Fla.1982), subject matter jurisdiction cannot be waived or conferred upon a court by consent or agreement of the parties. See Board of Trustees of Internal Improvement Fund v. Mobil Oil Corp., 455 So.2d 412 (Fla. 2d DCA 1984), rev'd on other grounds sub nom, Coastal Petroleum Co. v. American Cyanamid Co., 492 So.2d 339 (Fla.1986); In the Interest of A.W., 230 So.2d 200 (Fla. 1st DCA 1970). The proper forum in which to determine or to modify a child custody award has heretofore been held to be a question of subject matter jurisdiction, not one of personal jurisdiction or even of venue. See Wells v. Ward, 314 So.2d 138 (Fla.1975); Rhoades v. Bohn, 114 So.2d 493 (Fla. 1st DCA 1959), aff'd, 121 So.2d 777 (Fla.1960). But see Wells v. Ward, 298 So.2d 493, 494 (Fla. 1st DCA 1974) (Boyer, J., specially concurring) (proper forum in which to determine child custody in intrastate disputes should be decided on basis of venue statutes). Thus, the trial judge erred in determining that because the parties had agreed to transfer the case to the Lee County Circuit Court, he had jurisdiction to hear the petition for modification of the custody issue.

The wife, in her response to the husband's petition, ¹ contends that because the juvenile division of the Lee County Circuit Court had jurisdiction to hear her petition for dependency regardless of the venue of the original final judgment of dissolution, see In re S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965), it could properly transfer the case to the civil or family division of the Lee County Circuit Court under Florida Rule of Juvenile Procedure 8.530 for a determination of support. This argument fails for two reasons. First, the wife ignores that she and the husband agreed to treat the petition for dependency as a petition for modification of custody. Second, the wife is not only seeking support in the Lee County Circuit Court. Her petition for dependency, now modification, sought permanent custody of the children. The trial judge's October 29, 1987, order awarded her only temporary custody of them. Thus, an adjudication on modification of permanent custody, as well as support, remains pending in the Lee County Circuit Court.

The ability of the Lee County Circuit Court to modify the custody provisions of the original final judgment of dissolution entered in Hillsborough County is the true issue in this case. The husband contends that the Hillsborough County Circuit Court has exclusive jurisdiction to modify the original custody provisions of the dissolution decree entered there. From our review of the relevant case law, he appears to be correct. See Wells v. Ward, 314 So.2d 138; Marshall v. Marshall, 404 So.2d 1182 (Fla. 2d DCA 1981).

In Marshall, this court, relying on Wells, Bailey v. Malone, 389 So.2d 348 (Fla. 1st DCA 1980); and Poliak v. Poliak, 235 So.2d 512 (Fla. 2d DCA 1970), held that the circuit court which had original jurisdiction over the dissolution proceedings had the only authority to modify its custody award pursuant to a final judgment of dissolution. In Marshall, the wife, who lived in Manatee County, filed a petition for modification of child custody in Sarasota County, the county in which the husband and child lived. The original final judgment of dissolution was entered in Alachua County. This court held that Sarasota County lacked jurisdiction to consider the petition for change of custody. See also Lazar v. Lindsey, 510 So.2d 981 (Fla. 4th DCA 1987); Spear v. Spear, 510 So.2d 371 (Fla. 3d DCA 1987).

While this is the well-settled law of Florida which we are constrained to follow, we, nevertheless, question its continued validity. The basis for the rule that only the court which initially granted a child custody award has exclusive jurisdiction to modify that award appears to have been first announced in Cone v. Cone, 62 So.2d 907 (Fla.1953). In Cone the husband and wife were divorced, with the wife retaining custody of the minor child. Thereafter, the wife died and the husband petitioned for modification of the custody decree. The maternal grandmother had physical custody of the child. The trial court granted custody to the husband, and the grandmother appealed. The precise issue on appeal was whether the trial court had jurisdiction to modify the divorce decree which did not expressly retain jurisdiction. In ruling that the trial court did have jurisdiction, the supreme court held:

We do not understand the law of this state to be that jurisdiction to modify a divorce decree as to custody of the children of the divorced parties is dependent upon an express reservation in the decree of such jurisdiction. [Citations omitted.] ... "It is undoubtedly the law of this state that the proper custody of a minor child of divorced parents is a proper subject for judicial consideration at any time by the court which granted the decree of divorce." This must be so, first, because of the rule that when chancery once acquires jurisdiction over a subject-matter it will continue to exercise that jurisdiction so long and so often as occasion shall require for the purpose of making its decree effective and of granting full and final relief in the premises; and, second, because of the well-recognized principle that, independent of statute, a court of...