Alvarez v. Alvarez

566 So. 2d 516, 1990 WL 45513
CourtDistrict Court of Appeal of Florida
DecidedApril 12, 1990
Docket90-648
StatusPublished
Cited by4 cases

This text of 566 So. 2d 516 (Alvarez v. Alvarez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alvarez v. Alvarez, 566 So. 2d 516, 1990 WL 45513 (Fla. Ct. App. 1990).

Opinion

566 So.2d 516 (1990)

Mirtha Castellvi ALVAREZ, Appellant,
v.
Robert ALVAREZ, Appellee.

No. 90-648.

District Court of Appeal of Florida, Third District.

April 12, 1990.

Elizabeth S. Baker, South Miami, and Nancy B. Lucas, Miami, for appellant.

Berns & Feinberg and Richard J. Feinberg, Coral Springs, for appellee.

Judith L. Kreeger, Miami, Guardian ad Litem.

Before FERGUSON, COPE and GODERICH, JJ.

COPE, Judge.

Mirtha Castellvi Alvarez appeals an order granting an emergency motion to modify child custody. The order awarded temporary custody of the parties' ten year old child to the father, Robert Alvarez. We reverse.

The father and mother were divorced in Miami, Florida in 1980 and custody was awarded to the mother. When the son was eleven months old, the father kidnapped him and moved to New York. For the next *517 six years the child's whereabouts were concealed from his mother. The father remarried and the child was told that his stepmother was his natural mother.

When the child was six, his location was discovered. The New York courts enforced the Florida custody decree. The child was returned to the natural mother in Miami and the Florida courts again exercised jurisdiction. The father also returned to Miami.

From 1986 onward the court ordered psychological evaluations and counseling, and permitted the father only supervised visitation for fear of another kidnapping. In 1987 and 1988 court-appointed psychologists recommended expanded visitation rights for the father. While they recommended this as being in the best interest of the child, they recognized the potential adverse consequences to all family members if there were another kidnapping. The 1987 report stated:

In order to ensure that Mr. A. will not ever abduct his youngster again, he should be put on some sort of probation for the length of Robert's life, that is, if he abducts him, he may have to end up being incarcerated. Moreover, he can put [up] his properties as an insurance, that he will lose them, if he takes his youngster away.

In 1988 another psychologist recommended expanded visitation rights for the same reasons, but also stated:

While it is expected and understandable given the history of this family that Robert John's mother will be uneasy about this recommendation, this examiner believes such visitation to be in Robert John's best interest and therefore in the real best interest of both Mirtha Castellvi Alvarez and Robert Alvarez. There is no guarantee that Mirtha's worst fears will not come true although this examiner believes the likelihood of such an outcome to be remote. The personal and legal consequences of an abduction should be made perfectly clear to Robert Alvarez notwithstanding the fact that he appears to be quite clear in his understanding of the gravity of this matter. This recommendation is made not only to assist in the reassurance of Mirtha that her son will not be taken away again but also to establish whatever legal record is necessary to ensure that swift and appropriately severe measures would be taken in response to such a destructive and cruel event.

(Emphasis added).

The natural mother remarried. In May, 1989 the mother, stepfather, and child moved to New Jersey, where the mother and stepfather are participating in medical residencies in New York City.

The visitation arrangement was modified to permit the father weekend visitation with the child once every three weeks on a rotational basis. The weekend visitations would occur alternately in New Jersey and Miami, but in either case, the father would have custody of the child for the entire weekend visit.

On Friday, March 16, 1990 the father picked up the child in New Jersey for a New Jersey visitation. The father contends there were bruises on the child's arm which were a result of the mother's striking the child. The father concluded there was abuse by the mother, so he brought the child back to Miami and did not return him to the mother.

On Monday, March 19, late in the afternoon, the father's counsel filed in Miami an emergency petition for change of custody and gave telephone notice to the mother's counsel that a hearing would be held the following morning at 7:15 a.m. Requests to continue the hearing were refused and the trial court held a brief evidentiary hearing on an emergency basis. The mother's counsel was present but the mother, who was in New Jersey, was not. The only testimony at the hearing was that of the father and a statement by a volunteer guardian ad litem who had briefly interviewed the child that morning. The trial court concluded that, although New Jersey has become the home state of the child, the trial court had jurisdiction to act on the emergency petition, at least on an interim basis. The trial court awarded temporary *518 custody to the father pending further order of the court.

Subsequently, this court stayed the order changing custody, which stay order was disobeyed by the father for several days but ultimately was complied with. The appeal has been considered on an expedited basis.

It is undisputed that New Jersey has become the home state of the child. See § 61.1308(1)(a), Fla. Stat. (1989). Recognizing that fact, the father invoked two other jurisdictional provisions of the Uniform Child Custody Jurisdiction Act, the first of which was paragraph 61.1308(1)(c), the emergency provision of the Act. While that provision has very limited scope, it did confer jurisdiction on the trial court to entertain the request for temporary emergency relief as more fully explained in Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983) and Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1979). While we are reluctant to second guess the trial court which was at pains to be available on very short notice, we conclude that the record is wholly inadequate to support the relief granted and therefore reverse the order granting temporary custody to the father.

The father argues alternatively that the trial court has jurisdiction under the "significant connection" provision of the Act, paragraph 61.1308(1)(b), Florida Statutes (1989).[1] The mother contends that once the emergency provision is excluded, sole jurisdiction over this child custody matter exists in the child's home state of New Jersey and Florida cannot exercise jurisdiction in the matter. In determining that it had jurisdiction, the trial court agreed with the father and relied on Barnett v. Barnett, 528 So.2d 1231, 1232-33 (Fla. 4th DCA 1988), a case decided under the "significant connection" provision.

Our court has acknowledged, in common with other courts which have considered the issue and the comment to the Uniform Act itself, that situations will arise in which states have concurrent jurisdiction under the Act. See, e.g., Worth v. Worth, 554 So.2d 586 (Fla. 3d DCA 1989); Newcomb v. Newcomb, 507 So.2d 1145 (Fla. 3d DCA 1987); see also Uniform Child Custody Jurisdiction Act § 3, 9 U.L.A. 144 (1968).[2] A major goal of the Act is to eliminate jurisdictional conflict, so that where there is concurrent jurisdiction, the inconvenient forum, simultaneous proceedings, and related provisions of the Act are applied to assure that only one state will exercise jurisdiction. See §§ 61.1314, 61.1316, 61.1318, Fla. Stat. (1989). While there is considerable variation in the decisions interpreting "significant connection" jurisdiction under paragraph 61.1308(1)(b),[3] we will assume *519

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carlson v. Ritch-Carlson
741 So. 2d 1264 (District Court of Appeal of Florida, 1999)
Chaddick v. Monopoli
677 So. 2d 347 (District Court of Appeal of Florida, 1996)
Rohlfs v. Rohlfs
666 So. 2d 568 (District Court of Appeal of Florida, 1996)
Castellvi v. Alvarez
619 So. 2d 326 (District Court of Appeal of Florida, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
566 So. 2d 516, 1990 WL 45513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-alvarez-fladistctapp-1990.