Baggett v. Walsh

510 So. 2d 1099, 12 Fla. L. Weekly 1867
CourtDistrict Court of Appeal of Florida
DecidedAugust 4, 1987
DocketBS-218
StatusPublished
Cited by8 cases

This text of 510 So. 2d 1099 (Baggett v. Walsh) 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
Baggett v. Walsh, 510 So. 2d 1099, 12 Fla. L. Weekly 1867 (Fla. Ct. App. 1987).

Opinion

510 So.2d 1099 (1987)

Ronald Ralph BAGGETT, Appellant,
v.
Lee Ann Evenson Baggett WALSH, Appellee.

No. BS-218.

District Court of Appeal of Florida, First District.

August 4, 1987.

*1100 Kathleen F. Dekker, Tallahassee, for appellant.

David A. Barrett and Patricia B. Fournier, of Barrett & Bajoczky, Tallahassee, for appellee.

ZEHMER, Judge.

Ronald Baggett, a resident of Georgia (hereinafter referred to as the father or appellant), appeals the nonfinal order of the circuit court of Gadsden County denying his motion to dismiss his former wife's (hereinafter referred to as the mother or appellee) petition for modification of a Georgia judgment of dissolution of marriage which had been filed with the Florida court. The motion alleged that the court lacked in personam jurisdiction over appellant because no valid personal service of process had been made on him in Georgia. We conclude that the trial court erred in ruling that appellant waived this jurisdictional defense by filing his motion to enforce visitation rights under the judgment.

At the time the parties' marriage was dissolved by the Georgia court in July 1982, the parties' son was six years old. The final judgment incorporated the parties' separation agreement, which provided "that Wife shall have full custody and control of said minor child and Father shall have reasonable visitation." The agreement also provided that the father would pay fifty dollars per week for support and maintenance of the child and, further, that when he "is able to pay more he will increase said payment." After the divorce, the mother moved from Georgia to Gadsden County, Florida, and continued to have primary custody of the child. The son routinely visited the father at his home in Georgia, only a few miles away, and was often transported by the father's mother or his new wife on such visitations.

In September 1986 the mother filed a petition in the circuit court of Gadsden County by which she sought to register and modify the Georgia judgment. Personal service was not effected on the father in Georgia, and his motion to dismiss for lack of personal jurisdiction was granted in October 1986. In November the mother filed an amended petition to register the judgment[1] and to modify it "pursuant to Chapter 61, Florida Statutes." The petition specifically asked for (1) an increase in the amount of child support; (2) a structured visitation schedule because, she alleged, the parties had become unable to agree as to what constituted "reasonable visitation"; and (3) payment by the father of a portion of the son's medical and dental expenses and private school tuition, plus maintenance of a medical insurance policy covering the child. On December 4, 1986, the father filed an answer and affirmative defenses to this petition, and again moved to dismiss the petition for modification on grounds that the court lacked personal jurisdiction over him.

On January 20, 1987, before the pending motion to dismiss was heard, the father filed, in this proceeding, a motion to enforce his rights of visitation under the terms of the judgment. The motion recited the parties' history of visitation with the father's mother or wife picking up the son at appellee's home and transporting him to Georgia, and charged that after the mother's amended petition was filed she refused to deliver the child to appellant's wife and began to insist that the father personally pick him up for visitation. The motion alleged the father's concern that his former wife was trying to lure him to Florida in order to effect personal service, and requested the court to enforce the visitation provisions of the original judgment. The father's motion also alleged that "the issue of visitation can be settled apart from any other issues resolved or unresolved concerning child support as it is the public policy of this state to enforce visitation apart from child support matters." The motion specifically alleged that the father "does not wish to modify the custody decree *1101 and invokes the jurisdiction of this Court solely to enforce the decree necessitated by Ex-wife's acts arising out of the current litigation between them concerning child support and for no other purpose" (A. 33-34).

At the hearing on the father's motions to dismiss and to enforce visitation, held January 22, 1987, the father testified that he had not been a Florida resident since 1981, when he and appellee moved to Georgia, and that he had not resided in Florida since the entry of the final judgment of dissolution by the Georgia court. He explained that during the preceding two and one-half years his wife had picked up his son for visitation over half the time and that since October 1986 either his wife or his mother had transported the boy without objection by appellee. The father's wife then testified that on January 16, 1987, when she went to fetch the son for regular visitation, appellee refused to turn the boy over to her, stating that the father would have to personally come to her house to get his son. At the conclusion of the hearing, the trial judge stated:

[B]ut I am concerned — I think there may be a waiver. And I understand your argument that, you know, the child should not be used as some sort of a — as a hammer to get people to come into this state. But I can tell you right now, that this Court is not going to permit someone to come in and have an enforcement or — I'm not sure it's an enforcement action.
You're calling it an enforcement action. If there is nothing in the decree that indicates who is going to pick up the child, I'm not sure that is not a modification that you're asking for, technically....
So I think for the best interest of the child, I think the Court is going to rule that the filing of the motion to enforce the custody decree is really and truly a request for modification, even though you're talking about enforcement, let him have the child. The decree, as I read it, doesn't say anything about who is supposed to pick up the child or what have you, or doesn't require her to take the child to Georgia.
So what I'm going to do is I'm going to deny the motion to dismiss. Make a finding that the filing of the motion to enforce the custody decree is in actuality a motion to modify that custody decree.

(R. 101-102).

The court entered a confirming order February 11, 1987, which denied the motion to dismiss and ruled that the court had personal jurisdiction over the father for all purposes. The order stated that the court lacked personal jurisdiction over appellant until he filed his motion to enforce visitation on January 20, 1987, and continued:

This filing, which seeks affirmative relief flowing from the judicial powers of this Court, subjects the Father to the jurisdiction of this Court in connection with the Mother's pending action [F.S. 48.193(4).]
Counsel for the Father relies again on Overcash[2] and Frazier,[3] but these cases are distinguishable at this juncture by his filing for affirmative relief. The Father cannot logically or legally maintain a posture of denying the Court's jurisdiction to consider the Mother's requested relief while contemporaneously seeking the benefit of that same jurisdiction for his requested relief.

(A. 43).

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Bluebook (online)
510 So. 2d 1099, 12 Fla. L. Weekly 1867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baggett-v-walsh-fladistctapp-1987.