Arjona v. Torres

941 So. 2d 451, 2006 WL 3019578
CourtDistrict Court of Appeal of Florida
DecidedOctober 25, 2006
Docket3D06-1395
StatusPublished
Cited by22 cases

This text of 941 So. 2d 451 (Arjona v. Torres) 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
Arjona v. Torres, 941 So. 2d 451, 2006 WL 3019578 (Fla. Ct. App. 2006).

Opinion

941 So.2d 451 (2006)

Edgar Ricardo ARJONA a/k/a Ricardo Arjona, Appellant,
v.
Leslie TORRES a/k/a Leslie Arjona, Appellee.

No. 3D06-1395.

District Court of Appeal of Florida, Third District.

October 25, 2006.

*452 Greene Smith McMillan and Cynthia L. Greene, Miami; Leinoff & Lemos, Coral Gables, for appellant.

Lauri Waldman Ross; Elser Foster-Morales and Marsha B. Elser, Miami, for appellee.

Before CORTIÑAS,[1] ROTHENBERG, and LAGOA, JJ.

ROTHENBERG, Judge.

Edgar Ricardo Arjona a/k/a Ricardo Arjona appeals from a non-final order denying his motion to dismiss and/or abate the dissolution of marriage proceedings initiated by his wife, Leslie Torres a/k/a Leslie Arjona, in Miami, Florida. We affirm.

The Arjonas were married in Nevada in 1992, and have two minor children who were born in Puerto Rico. Mrs. Arjona is a United States citizen who resided in Florida until the parties married, while Mr. Arjona is a Guatemalan citizen. The Arjonas moved to Mexico in 1992 and resided there until 1999 when they relocated to Miami. Mr. Arjona returned to Mexico without his wife and children, and in July 2001, Mrs. Arjona returned to Mexico with the minor children in an attempt to reconcile with her husband. In August 2002, Mrs. Arjona and the children returned to Miami where they have continuously resided.

On August 19, 2002, Mrs. Arjona filed a petition for dissolution of marriage in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County ("circuit court"). As Mrs. Arjona did not meet the six-month residency requirement,[2] the *453 circuit court granted Mr. Arjona's motion to dismiss, which challenged the circuit court's subject matter jurisdiction, while reserving jurisdiction to determine if Mrs. Arjona should be allowed to amend her petition to seek separate maintenance.

On September 25, 2002, Mr. Arjona filed a petition for divorce in Mexico, requesting that he be awarded custody of the minor children. On October 23, 2002, Mrs. Arjona amended her petition in Miami, seeking custody of the children, maintenance, and child support. Thereafter, on December 6, 2002, the Mexican court granted Mrs. Arjona temporary custody of the children and ordered her husband to provide temporary support. On December 13, 2002, the circuit court abated the wife's action, pending a resolution of the husband's Mexican action.

After Mrs. Arjona unsuccessfully challenged the Mexican court's jurisdiction, the Mexican court entered a final judgment denying Mr. Arjona's petition for divorce, finding that he was unable to establish any of the alleged grounds for divorce, and this ruling was upheld on appeal in June 2005.

On November 4, 2005, Mr. Arjona filed a renewed petition for dissolution of marriage in Mexico, asserting that his wife had abandoned the marital home. Unlike his September 2002 petition, in this petition, Mr. Arjona did not specifically seek custody of the minor children. However, on December 13, 2005, prior to being served with the renewed Mexican petition,[3] Mrs. Arjona filed a petition for dissolution of marriage in the circuit court, and served her husband with the petition the following day. In this petition, Mrs. Arjona sought a determination as to the primary residential responsibility for the minor children and an adjudication of the parties' financial matters.

On February 2, 2006, Mr. Arjona filed a "Verified Emergency Motion for Temporary Custody by Special Appearance," seeking the circuit court's "intervention pursuant to Fla. Stat. 61.517." In this motion, he asserted that the children, who have resided with his wife in Miami-Dade County since 2002, were being mistreated and abused. Following a hearing held on February 7, 2006, the trial court denied Mr. Arjona's motion without prejudice.

Shortly thereafter, on February 27, 2006, Mr. Arjona filed a "Motion to Dismiss and/or Abate Proceedings by Special Appearance," asserting that he filed his divorce action in Mexico before his wife filed her divorce action in the circuit court, and therefore, "[p]ursuant to Florida law and the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act], it is clear that because Mexico correctly assumed jurisdiction first, Florida must defer to it in resolving all matters." In response, the wife filed the affidavit of her Mexican attorney, averring that there were no custody proceedings pending in Mexico. Mr. Arjona also submitted an affidavit from an expert, who averred that, although the husband's renewed Mexican petition does not seek custody of the children or division of marital assets, if the Mexican court grants a divorce, it is required to decide custody and financial issues in its final decision.[4]

*454 On May 12, 2006, the trial court denied Mr. Arjona's motion to dismiss, finding that the circuit court has jurisdiction over the competing Mexican case. The circuit court found that, pursuant to Mabie v. Garden Street Management Corp., 397 So.2d 920 (Fla.1981), and Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943), the date of service of process, not the date of the filing of the complaint, governs jurisdictional conflicts. The circuit court also denied Mr. Arjona's request to abate the action, finding that the action in Florida contained a count for custody and that Florida is the children's undisputed home state.

In this non-final appeal, although Mr. Arjona does not challenge the circuit court's jurisdiction to dissolve the marriage and to determine all financial issues, he contends that the trial court erred by denying his motion to dismiss and/or abate the circuit court's proceeding regarding the initial child custody determination. We disagree.

To resolve the issues before us requires a review and an interpretation of the UCCJEA. The parties, therefore, agree that the proper standard of review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006)("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.").

The Uniform Child Custody and Jurisdiction Act ("UCCJA") became effective in Florida on October 1, 1977. Thereafter, on October 1, 2002, the UCCJA was repealed and replaced with the UCCJEA. 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. § 61.502, Fla. Stat. (2005). The UCCJEA is, therefore, a jurisdictional act which controls custody disputes. It does not deal with priority of dissolution actions. A foreign country is treated as if it were a state of the United States for purposes of this act. § 61.506, Fla. Stat (2005).

Section 61.514, Florida Statutes (2005), of the UCCJEA, unequivocally limits jurisdiction to determine initial custody matters (except for temporary emergency matters) to the "home state" of the child, and section 61.503(7) defines "home state," in pertinent part, as "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." Section 61.514, Florida Statutes (2005), provides as follows:

Initial child custody jurisdiction.—

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941 So. 2d 451, 2006 WL 3019578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arjona-v-torres-fladistctapp-2006.