DENNIS DECELLE, APPELLANT,
v.
SUZANNA ELIZABETH KENYON, APPELLEE
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A Florida trial court dismissed a father's custody modification petition, finding that Georgia had jurisdiction. The appellate court reversed, holding that Florida retained continuing jurisdiction under the Uniform Child Custody Jurisdiction Act and that the trial court failed to make required findings before declining jurisdiction.
Florida retained continuing jurisdiction under section 61.1316, and the trial court erred in dismissing the case sua sponte without making findings or expressing reasons for declining jurisdiction. The case is reversed and remanded for further proceedings.
[1] A Florida court retains continuing jurisdiction over a child custody case when a petition for modification is pending, even if one parent has relocated to another state.
[2] A trial court cannot sua sponte dismiss a child custody case without making findings or expressing reasons for declining jurisdiction.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As the court had continuing jurisdiction under section 61.1316, Florida Statutes (1991), we reverse.”
Establishes the core holding that Florida retained continuing jurisdiction and the dismissal was improper.
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Join FLexlaw to unlock all legal intelligenceThe parties are natural parents of a child born in Martin County, Florida in 1991. A custody and visitation agreement was ratified by the trial court,…
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WARNER, Judge.
The trial court entered an order sua sponte dismissing this child custody case while the appellant/father’s petition for modification of custody agreement was pending because it determined that jurisdiction was in the state of Georgia. As the court had continuing jurisdiction under section 61.1316, Florida Statutes (1991), we reverse.
The parties are the natural parents of the child at issue who was born in Martin County, Florida in 1991. A petition was filed to determine custody, support, and visitation. The parties entered into a child custody and visitation agreement which was ratified and incorporated by the trial court in its order on custody, visitation, and support. As of the date of the order, the mother had relocated to Georgia.
On October 9, 1992, the father filed a petition for modification of custody, and the parties signed a mediation agreement in May 1993. The court file index reveals continued litigation throughout this period. In August 1994, the father filed an emergency motion to modify the mediation agreement. On the same day that the father filed his emergéncy motion, he also filed an Ex Parte Petition for an injunction enjoining removal of the child from the court’s jurisdiction. The court entered an injunction, amended it, and then dissolved it at a hearing on August 18, 1994, at which time the court also sua sponte raised the issue of Florida’s continuing jurisdiction of the case. Some three months later, the trial court entered its order dismissing the case on the ground that jurisdiction should be in Georgia.
While the mother argues that Florida did not have jurisdiction, citing section 61.1308, Florida Statutes (1991), that contention has already been rejected in Yurgel v. Yurgel, 572 So. 2d 1327, 1331-32 (Fla.1990). Moreover, we do not interpret the trial court’s ruling as one of the absence of jurisdiction.
Nevertheless, we must still reverse because the court failed to make findings or to express reasons for declining jurisdiction. See Ennis v. Conran, 648 So. 2d 784, 785 (Fla. 4th DCA 1994). The trial court did not have the benefit of Ennis when the order of dismissal was rendered. However, we apply the law as of the time of the determination of the appeal. Florida Patient’s Compensation Fund v. Von Stetina, 474 So. 2d 783, 787-88 (Fla.1985).
We remand for further proceedings consistent with this opinion.
STONE and SHAHOOD, JJ., concur.
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Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999)…the interest of justice to "any other court of record in which it might have brought.” See § 47.122, Fla. Stat. (1997). . We distinguish for review purposes orders dismissing an action on forum non conveniens grounds. See, e.g., Decelle v. Kenyon, 667 So. 2d 981 (Fla. 4th DCA 1996), and Ennis v. Conran, 648 So. 2d 784 (Fla. 4th DCA 1994). In that circumstance where order of dismissal is final rather than nonfinal we have final appeal jurisdiction under rule 9.110. . The concept of forum non conveniens by i…
Authorities Cited
- Rona E. Yurgel v. Yurgel, 572 So. 2d 1327 (Fla. 1990)
- Pioneer Fed. Sav. & Loan Ass'n v. Reeder, 474 So. 2d 783 (Fla. 1985)
- Perez v. State, 648 So. 2d 784 (Fla. 2d DCA 1994)
- Ennis v. Roseanna Ennis Conran, 648 So. 2d 784 (Fla. 4th DCA 1994)