Yurgel v. Yurgel

• Citation: 572 So.2d 1327
• Decision Date: 01 November 1990
• Docket Number: No. 74610,74610
• Parties: 15 Fla. L. Weekly S566, 16 Fla. L. Weekly 79 Rona E. YURGEL, etc., Petitioner, v. Glenn G. YURGEL, Respondent.
• Court: Florida Supreme Court

Page 1327

572 So.2d 1327

15 Fla. L. Weekly S566, 16 Fla. L. Weekly 79

Rona E. YURGEL, etc., Petitioner, v. Glenn G. YURGEL, Respondent.

No. 74610.

Supreme Court of Florida.

Nov. 1, 1990.

Opinion Clarified Nov. 1, 1990.

A. Matthew Miller of Miller, Schwartz & Miller, P.A., Hollywood, for petitioner.

Marc H. Brawer of Law Office of Mark H. Brawer, Sunrise, for respondent.

Deborah Marks of Greene & Marks, P.A., Miami, amicus curiae for Family Law Section of The Florida Bar.

CORRECTED OPINION

KOGAN, Justice.

We have for review Yurgel v. Yurgel, 546 So.2d 746 (Fla. 4th DCA 1989), which certified the following questions of great public importance:

1) Is an appeal from a custody order in the lower court a "custody proceeding" within the meaning of the UCCJA [Uniform Child Custody Jurisdiction Act] so as to toll the vesting of "home state" jurisdiction in a foreign state while the original state continues to exercise jurisdiction over the parties and the subject matter?

2) Does the filing of a petition for modification of custody in the lower court, within six months of the children residing in Florida, and while an appeal is pending in Florida, toll the vesting of "home state" jurisdiction in a foreign state? and

3) Is relinquishment of jurisdiction pursuant to Rule 9.600(b) of the Florida Rules of Appellate Procedure a condition precedent to the preservation of continuing "home state" jurisdiction?

Id. at 748-49. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

A final judgment in the dissolution of the marriage of Rona and Glenn Yurgel was entered in March 1986. The order gave primary residence of the children to the husband. The children left Florida with their father in August 1986 and took up permanent residence in New York. There is no question that initial jurisdiction of the custody dispute was validly acquired by the Florida court.

In December 1986, during the pendency of the appeal of the final judgment, the wife petitioned the trial court to modify the custody provisions. She also moved for an emergency stay of the children's return to New York after a Christmas-vacation visit to her in Florida. The emergency stay was denied, but the court did not immediately act on the request for modification.

In May 1987 the district court affirmed the final judgment. Yurgel v. Yurgel, 505 So.2d 636 (Fla. 4th DCA 1987). This opinion, however, did not dispose of the wife's petition, which the trial court had not yet addressed.

During the next six months, the husband filed several notices to hear a motion to dismiss the wife's petition. No hearing was held. In November 1987 the wife filed an amended supplemental petition for modification, and the husband again moved to dismiss. The husband's motion was denied in January 1988.

A final hearing was scheduled for December 1988. Before then, however, the trial court denied the husband's motion for summary judgment and sua sponte denied the wife's supplemental petition. The wife appealed to the district court.

The Fourth District affirmed in part and reversed in part. It found that the appeal had divested the trial court of all jurisdiction, thus rendering the wife's petition to modify a nullity. The district court then concluded that the amended petition did not "relate back" to the initial petition. As a result, the district court concluded that the trial court had lost jurisdiction of the custody dispute because the children had been outside Florida for more than six months prior to the date the amended petition was filed. It cited a portion of the Florida UCCJA, section 61.1308, Florida Statutes (1987), as supporting this proposition.

However, the district court remanded for consideration of whether a "significant connection" gave the trial court jurisdiction. Yurgel, 546 So.2d at 747-48. In a partial dissent, Judge Warner argued that the real issue in this case is whether Florida was an inconvenient forum for the continued litigation of this custody dispute. Id. at 748.

Throughout the extensive procedural history recited above, the children have continued to return to Florida for visitation with the mother for a period of at least three months in every year.

The resolution of the issues presented by this case turns upon the interplay of several statutes.

The portion of the UCCJA upon which the district court relied provides in pertinent part:

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(a) This state:

1. Is the home state of the child at the time of commencement of the proceeding, or

2. Had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state[.]

§ 61.1308, Fla.Stat. (1987).

This basic grant of jurisdiction, however, is qualified by other relevant statutes. In one of its most important operative provisions, the UCCJA forbids a state to modify the custody decrees of other states unless those other states no longer have, or have declined to exercise, jurisdiction. § 61.133, Fla.Stat. (1987). Since the UCCJA has been adopted by most American jurisdictions, this provision is in force virtually nationwide. It thus binds not only the courts of Florida, but also the courts of every other state that has adopted the UCCJA.

The UCCJA further provides:

A court which has jurisdiction under this act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

§ 61.1316(1), Fla.Stat. (1987). This provision thus codifies and strengthens the long-standing judicial doctrine of inconvenient forum.

Finally, the UCCJA itself is subject to a separate federal statute, the Parental Kidnapping Prevention Act (PKPA), which provides in pertinent part:

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if--

(1) such court has jurisdiction under the law of such State; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding....

....

(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

28 U.S.C. § 1738A (1987). Under the supremacy clause of the Constitution, the PKPA supersedes any and all inconsistent state laws. Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988).

The overriding purpose of the state and federal statutory framework outlined above is "to prevent interstate competition and conflicts" about custody disputes among the various jurisdictions of the American Union. Padgett v. Pettis, 445 So.2d 633, 635 (Fla. 1st DCA), cause dismissed, 450 So.2d 487 (Fla.1984). The UCCJA, in other words, was designed to bring order out of the chaos that once marked interstate custody disputes when the courts of different states claimed authority to issue contradictory custody orders. This intent is the polestar by which these enactments must be interpreted, see State v. Webb, 398 So.2d 820, 824 (Fla.1981); Wakulla County v. Davis, 395 So.2d 540, 542 (Fla.1981), and it is the obligation of the Florida courts to honor this intent even if it seems contrary to the literal language of the statute.

In this vein, we do not believe the statutes were intended to create uncertainty as to exactly which state may exercise jurisdiction over a prior Florida custody decree once a parent, a child, or a parent and child have left Florida. Rather, the primary purpose of the UCCJA is to create certainty by ensuring that jurisdiction over a specific custody dispute can be obtained only by a single state at a time. To this end, a sure and definite procedure must exist by which one state relinquishes to another state the jurisdiction it validly has obtained over a custody dispute.

The opinion below, especially in the phrasing of the certified questions, reflects some confusion as to the application of these principles.

Contrary to the assumptions of the opinion below, we believe the primary purpose of section 61.1308 is not as a gauge of the continuing jurisdiction of the Florida courts over custody disputes for which jurisdiction already has been properly acquired. Rather, the statute is concerned primarily with determining when a Florida court may acquire initial jurisdiction over a custody dispute. The statute, in other words, is meant to prevent competing and inconsistent exercises of jurisdiction by two or more states, not to terminate jurisdiction that already has been validly acquired by Florida. Accord Roby v. Nelson, 562 So.2d 375 (Fla. 4th DCA 1990).

This is a legal principle reflected in both the common and statutory law of this state. Florida law, for instance, clearly holds that a court has inherent continuing jurisdiction over its own custody decrees. Padgett, 445 So.2d at 635; Golstein v. Golstein, 442 So.2d 330 (Fla. 4th DCA 1983); Phillips v. Nationwide Mut. Ins. Co., 347 So.2d 465, 466 (Fla. 2d DCA 1977). See Evans v. Cone, 62 So.2d 907 (Fla.1953).

This principle is equally supported by the well-documented history underlying the UCCJA. Professor Brigitte Bodenheimer, reporter for the UCCJA, has written extensively on the subject and reports that one of the primary evils eliminated by the UCCJA was "concurrent jurisdiction" by two or more states over the same...