Crippen v. Crippen

610 So. 2d 686, 1992 WL 372229
CourtDistrict Court of Appeal of Florida
DecidedDecember 18, 1992
Docket92-2109
StatusPublished
Cited by2 cases

This text of 610 So. 2d 686 (Crippen v. Crippen) 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
Crippen v. Crippen, 610 So. 2d 686, 1992 WL 372229 (Fla. Ct. App. 1992).

Opinion

610 So.2d 686 (1992)

John D. CRIPPEN, Jr., Appellant,
v.
Cheryl A. CRIPPEN, Appellee.

No. 92-2109.

District Court of Appeal of Florida, First District.

December 18, 1992.

*687 Warren J. Bird of Conner and Walborsky, Tallahassee, for appellant.

Thomas E. Stone, Madison, for appellee.

SMITH, Judge.

Appellant appeals an order entered pursuant to section 741.30, Florida Statutes (1989), extending an injunction for protection against domestic violence for one year. We affirm. For the reasons outlined below, we reject appellant's contention that the trial court was required under the Uniform Child Custody Jurisdiction Act (UCCJA) to yield its jurisdiction in favor of the exercise of jurisdiction by a Wisconsin court, which acquired jurisdiction after this proceeding was begun in Florida.

The parties were married in Wisconsin in 1983 and have three children. They continued to reside in Wisconsin until October 1991, when they relocated to Madison County, the home of the maternal grandparents. According to the wife, they intended to permanently reside in Florida and brought all their personal possessions to Florida. Shortly thereafter, the parties separated. In her verified petition, she alleges this was due in large part to the husband's alcohol-induced violent behavior. She contends her husband told her he had employment in Panama City and that he would be staying in Florida. She thought he was living in Perry after the separation. Alleging that her husband threatened her with a firearm, the wife filed a petition for temporary injunction for protection against domestic violence on November 14, 1991, pursuant to section 741.30.[1]

An ex parte hearing, which is provided for in section 741.30(6)(a), was held the same day the petition was filed. The court entered a temporary injunction and issued a notice of hearing to be held one month later, at which hearing a determination would be made whether the injunction should be extended. The injunction awarded the wife temporary sole custody of the parties' three children.

The husband acknowledges in his brief that he was served with the injunction and notice of the December 12 hearing, on the evening of December 11, 1991. However, when the hearing was held the next day, and there was no proof of service in the court file, the court continued the hearing.

In the meantime, on November 27, 1991, the husband, through Wisconsin counsel, filed for divorce in Wisconsin. In his petition, he alleged that he resided in Milwaukee County for more than 30 days and in Wisconsin for more than six months immediately preceding the commencement of the action. He sought joint custody of the minor children. Attached to the petition for divorce is an affidavit of custody information in which the husband asserted he was unaware of any other custody proceedings concerning the minor children pending in a court of Wisconsin or any other state. In the affidavit he admitted: "I have a continuing duty to inform this court of any custody proceedings brought concerning the children in this or any other state of which I obtain information during this proceeding." A hearing in the Wisconsin action *688 was scheduled for January 24, 1992. The wife was ordered to appear and return the children to Wisconsin for the hearing.

On January 23, 1992, the Florida circuit court entered an order of clarification commenting that the court had had to continue its hearing scheduled for December 12 based upon good cause, but that it was the intention of the court, although not expressly stated, that the provisions of the temporary injunction for protection would remain in full force and effect until a hearing could be conducted.

Hearings were held in Wisconsin on January 24 and 27. Neither the wife nor the children appeared. The wife made a special appearance, through Wisconsin counsel, to contest the jurisdiction of the Wisconsin circuit court. The court rejected the wife's argument and entered an order finding that Wisconsin was the home state of the children pursuant to the UCCJA. The court found the wife to be in contempt for failure to appear and produce the children and she was again ordered to return with the children for hearing on January 31, 1992. She did not appear. Thereafter, in an order dated February 5, 1992, the Wisconsin court awarded temporary custody of the parties' children to the husband.

As can be seen from the above recitation of facts, at this point, the parties either wittingly, or unwittingly, set the stage for an ultimate conflict between Florida and Wisconsin over the authority to adjudicate the matter of custody of these children. In reviewing the facts to this point, the question must be asked, and answered, whether anything could have been done by either party to avoid this conflict. We believe that there was a failure to comply with the requirements of the UCCJA at this juncture, and it was the action or inaction of the husband, in failing to fully apprise the Wisconsin court of the Florida custody proceeding, that was the significant contributing cause in the ensuing controversy.

The UCCJA requires a party to file in his first pleading or by affidavit information regarding any custody proceeding in another state. § 61.132, Fla. Stat.; § 822.09, Wis. Stat. The husband did file such an affidavit on November 27, 1991, in which he asserted truthfully, we will assume, that he knew of no other custody proceeding concerning his children. At the same time he acknowledged his continuing duty, imposed by statute, to inform the court of any custody proceeding regarding the children. Id. This requirement serves important purposes, among them being to enable the court receiving the information — in this case the Wisconsin circuit court — to determine its jurisdiction and to identify courts in other jurisdictions which should be contacted in the event of conflict. Walt v. Walt, 574 So.2d 205, 211 n. 7 (Fla. 1st DCA 1991).[2]

There is no evidence in the appendices filed by the parties,[3] that the Wisconsin circuit court was ever advised by supplemental pleading or affidavit of the nature and effect of the custody proceeding pending before the Florida circuit court. A passing comment in one of the orders of the Wisconsin circuit court indicates the court may have had informal notice of the Florida proceeding, but the court discounted the November 14, 1991 order of the Florida circuit court because it was entered ex parte. Clearly, the Wisconsin court was not advised by the husband that section 741.30, Florida Statutes, permits an order to be entered ex parte under special circumstances outlined in the statute — circumstances which were alleged to be present in this case. Moreover, the Wisconsin court had imperfect knowledge of the subsequent Order of Clarification entered January 23, 1992, believing it to have granted permanent custody of the children to the wife without ever granting the husband a hearing. Accordingly, the Wisconsin circuit *689 court gave no consideration or deference to the Florida action and proceeded to act as if no other state court was involved in the matter. This inevitably led to the present impasse and the thwarting of the purposes of the UCCJA, one of the most important of which is to avoid jurisdictional competition and conflict between state courts in the matters of child custody. See generally, Siegel v. Siegel, 575 So.2d 1267, 1269 (Fla. 1991).

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Bluebook (online)
610 So. 2d 686, 1992 WL 372229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crippen-v-crippen-fladistctapp-1992.