D.M. v. J.D.M. ex rel. C.F.

814 So. 2d 1112, 2002 Fla. App. LEXIS 4275
CourtDistrict Court of Appeal of Florida
DecidedApril 3, 2002
DocketNo. 4D01-4553
StatusPublished
Cited by6 cases

This text of 814 So. 2d 1112 (D.M. v. J.D.M. ex rel. C.F.) 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
D.M. v. J.D.M. ex rel. C.F., 814 So. 2d 1112, 2002 Fla. App. LEXIS 4275 (Fla. Ct. App. 2002).

Opinion

WARNER, J.

This appeal arises from an order denying a motion to transfer venue of a dependency action from Broward County to Dade County, where post-dissolution custody proceedings involving the minor had been ongoing for the past ten years. We conclude that the trial court abused its discretion in failing to transfer the proceedings to Dade County and reverse.

Appellant, D.M., divorced his former wife, C.F., in Dade County in 1990. A year later, the final judgment was amended to provide for shared parental responsibility, with D.M. having primary physical residence of the minor child J.D.M. That residence was, and continues to be, by court order, in Dade County. C.F. was granted visitation with J.D.M. every other weekend and every Wednesday night. For the next ten years, the former spouses continued to litigate issues involving the minor in Dade County. C.F., a lawyer, lives in Broward County where she has a substantial practice in the dependency court.

On May 29, 2001, C.F., as next friend of J.D.M., filed a petition for a domestic violence injunction in Dade County against D.M. The petition alleged that D.M.’s angry outbursts and belittling of J.D.M. were causing J.D.M. to be emotionally drained and that J.D.M. feared D.M. might engage in a physical attack, although no physical contact was alleged except for D.M. grabbing J.D.M. by the wrist. The petition further alleged that J.D.M. felt he could no longer five with his father. A request for a temporary injunction was denied after an ex parte hearing on the grounds that the allegations did not meet the statutory criteria for a domestic violence injunction.

Upon the filing of the petition, the State of Florida Department of Children and Family Services (“DCFS”) assigned a protective investigator in Dade County to investigate the abuse allegations made against D.M. The investigator interviewed J.D.M., D.M., and C.F. She also questioned J.D.M.’s treating psychologist. After review, the investigator recommended counseling services. No change of custody was recommended.

On June 13, 2001, C.F. failed to return J.D.M. to the custody of D.M. in Dade County after J.D.M.’s regular visitation with her in Broward County. The next day, after an adversarial hearing on the petition for domestic violence, the Dade County Circuit Court dismissed the petition finding “no just cause. No evidence was presented beyond the pleading.”

On the same day the petition for domestic violence injunction was denied, C.F. filed an emergency motion in Dade County Circuit Court, family division, seeking temporary custody of J.D.M. or extended visitation. In it, she alleged that J.D.M. was in extreme emotional distress living with his father. She alleged that he had been examined by Dr. Amy Swan, who found that J.D.M. was a victim of domestic violence and had become fearful and depressed. Dr. Swan is a psychologist in [1114]*1114Broward County and was not J.D.M.’s treating psychologist.

On July 16, 2001, after scheduling C.F.’s deposition several times, all of which she faded to attend, D.M. filed a motion in Dade County Circuit Court for contempt and return of the minor child. That same day, C.F. filed a notice of withdrawal of her Dade County motion for temporary custody, stating in the notice that the Bro-ward County Sheriffs Office, Child Protective Services Division, in conjunction with DCFS, was conducting an investigation and the sheriffs office had placed the minor child with C.F. However, by that time, all of the investigators in both Broward County and Dade County had advised that they would not recommend that custody should be transferred to C.F. The next day, Dr. Swan filed the petition for adjudication of dependency with respect to J.D.M. in Broward County. A sua sponte order for placement in shelter was entered on July 24, 2001, placing the child with C.F. D.M. argued that proceedings were ongoing in Dade County and that court had jurisdiction of the custody matter.

In the meantime, D.M.’s contempt motion was brought before the court in Dade County on August 7, 2001. After hearing from the parties, the court entered an extensive order which included the following findings:

7. On July 17, 2001, Dr. Amy Swan filed a Petition for Dependency in the Broward County Court under Case Number 01-8644 DP. This Petition was drafted with the assistance of the Petitioner [C.F.]. The Petitioner is an attorney, licensed to practice law in the state of Florida, whose primary practice is in the Dependency Court of Broward County.
Dr. Swan testified that the Petitioner assisted her in drafting the petition. She also testified that she, Dr. Swan, was aware that there was a pending action in Dade County in the Family Court. She was also aware that there was a case worker assigned to this family in Dade County.
When questioned by the Court, Dr. Swan testified that her reason for filing in Broward County Court rather than in Dade County, where the matter was pending, was because she felt the case was not being properly handled by the Department of Children and Family Services in either Dade or Broward County. In addition, Dr. Swan testified that she is more familiar with Broward County and as such, felt more comfortable filing the petition in Broward County-

While the Dade County trial judge reserved ruling on the motion for contempt and return of the child “until such time as the matter in Broward County has been resolved or jurisdiction relinquished,” the court sanctioned petitioner, C.F., and stated “[i]t is clear to this Court that the Petitioner’s actions indicate not only that she was forum shopping but that she was seeking a favorable ruling in Broward County, when she had failed to obtain one in the Domestic Violence Division of the Dade County Court. The fact that the Petitioner is an attorney makes this conduct even more egregious.” The court assessed a fine of $2,500.

D.M. filed a motion to transfer venue of this Broward dependency proceeding to Dade County on the ground that he was the residential parent, Dade County was the residence of J.D.M., and the Dade County Circuit Court had exclusive jurisdiction over the proceedings that had been ongoing for the past ten years. He further argued that the initial venue selection was improper under section 47.011, Florida Statutes (2001), which provides that “[a]c-tions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the prop[1115]*1115erty in litigation is located.” The trial court denied the motion to transfer venue, and this appeal followed.

Chapter 39, Florida Statutes (2001), Proceedings Relating to Children, does not contain any venue provisions. Section 39.013(2) authorizes the circuit court to assert exclusive jurisdiction over dependency proceedings under chapter 39, but it says nothing expressly about venue. D.M. contends that the general venue provision of section 47.011 should apply to these proceedings. Because D.M. is a “defendant” and his residence is in Dade County, then initial venue must lie in that county. Alternatively, the “cause of action” accrued in Dade County where the acts upon which the dependency is based took place. We can find no authority for either assertion. While the parents are “parties” in dependency proceedings, so is the child. See Fla. R. Juv. P. 8.210(a). None are referred to as a “defendant.” A defendant is one against whom a civil or criminal proceeding is filed.

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Cite This Page — Counsel Stack

Bluebook (online)
814 So. 2d 1112, 2002 Fla. App. LEXIS 4275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dm-v-jdm-ex-rel-cf-fladistctapp-2002.