Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.  

Florida Divorce & Family Law Update for Week Ending February 22, 2015

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:              McIndoo v. Atkinson
Court:             Fourth District Court of Appeal.
Trial Judge:   Laura M. Watson.
Attorneys:      Pro Se.
Issues:            Custody, Foreign Judgments. 

Holding:  The general purposes of the UCCJEA are to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid relitigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

If the factual circumstances of a case meet the jurisdictional standards of the statute, and the foreign order has not been modified, then a trial court should exercise jurisdiction to grant a party’s petition of domesticate the foreign order. Specifically, in a child custody proceeding under commenced under Florida statute, if the Home State Rule applies, and if there are no proceedings in another state, or if there are proceedings in the another state which are not identical to those in Florida, then a Florida trial court may exercise jurisdiction.

A child custody proceeding involves legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Under Florida statute, “Home State” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. The “Home State” rule applies to child custody proceedings.

A Florida court may not exercise its jurisdiction for custody if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state.

In this case, the trial court erred when it found that it did not have subject-matter jurisdiction because: (1) the Petitioner Mother did not file a motion regarding a “child custody proceeding” as defined by Florida statute; (2) Florida was not the “home state” of the child; and (3) proceedings “in substantial conformity with the UCCJEA” had been commenced in another jurisdiction.

Child Custody Proceeding

The trial court erred when it declined to exercise jurisdiction to act upon the petition to domesticate a foreign custody order in the absence of any statutory, or other, authority requiring that a proceeding be a “child custody proceeding” under the definition in the UCCJEA before it could act. To the contrary, both the statute governing domestication of a foreign judgment and registration of a judgment are contained within Florida’s UCCJEA statutes.  Therefore, the fact that the mother’s filings were not regarding a child custody proceeding is irrelevant to the question of jurisdiction to domesticate a foreign custody order.

Home State Rule

The trial court also erred in its interpretation of the proceedings and its application of the Home State Rule by denying the Petitioner Mother’s application to domesticate the foreign order and seeking to rely on the Respondent Father’s opposition to the petition, which relied in large part on this section of the UCCJEA. The child custody proceeding was properly within the domain of Florida statute because, as was in fact found by the trial court, the petitions filed by the mother did not constitute “child custody proceedings.” This means that the “home state” rule did not apply to the mother’s petitions.

Simultaneous Proceedings

The trial court further erred as it failed to specifically cite to this statute in its order, since it stated that the proceedings in the other state (ie: Arizona) were in substantial conformity with the UCCJEA. However, the proceedings before the trial court could have been entertained as they were for domestication of the foreign order.  When the trial court concluded it did not have subject-matter jurisdiction based, at least in part, upon the simultaneous proceedings statute, it misapplied the statute.

The appeals court reversed the trial court’s order and remanded for the trial court to enter an order granting the Petitioner Mother’s petition to domesticate the foreign order and confirming its registration.

Case:              Butler v. Prine
Court:             Second District Court of Appeal.
Trial Judge:   Linda R. Allan.
Attorneys:      Tori A. Butler, Kathryn Marie Welsh.
Issues:            Attorney’s Fees. 

Holding:  An award of attorney’s fees post-dissolution is within the jurisdiction of the trial court but must be based on substantial and cogent evidence for the court. Among such evidence is that regarding the reasonableness and necessity of all the legal work underlying the attorney fees forming the basis of such an award. Further, the trial court must adequately consider this particular factor. In this case, the trial court erred insofar as, while the evidence before it justified a fee award of some amount, the trial court did not establish that it had adequately considered the reasonableness and necessity of all of the legal work underlying the attorney fees. The appeals court reversed the award of attorney's fees and remanded for the trial court’s reconsideration with authorization to receive additional evidence. 

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.