Moore v. Moore

577 So. 2d 1359, 1991 Fla. App. LEXIS 3021, 1991 WL 45755
CourtDistrict Court of Appeal of Florida
DecidedApril 3, 1991
DocketNo. 91-00214
StatusPublished
Cited by1 cases

This text of 577 So. 2d 1359 (Moore v. Moore) 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
Moore v. Moore, 577 So. 2d 1359, 1991 Fla. App. LEXIS 3021, 1991 WL 45755 (Fla. Ct. App. 1991).

Opinion

ALTENBERND, Judge.

The trustee for the three children of [1360]*1360Richard L. Moore appeals1 an order of the probate court which determined that it has no jurisdiction to require Mrs. Tulin Moore, the personal representative of the estate of Richard L. Moore, to perform an accounting or to return assets to the probate estate. The probate court made this determination because Mrs. Moore is in this country by virtue of an extradition treaty between the United States and Switzerland. To the extent that the probate court determined it had no power to punish Mrs. Moore for events preceding her extradition, we affirm. We reverse, however, to the extent that the probate court concluded it lacked jurisdiction to order the personal representative to perform functions of her position that she is legally obligated to perform at this point in time. If she fails to perform these tasks in the future, it does not appear that the extradition treaty between the United States and Switzerland would preclude the use of criminal contempt to punish any future disobedience.

Richard L. Moore died in Pinellas County in 1985. His estate is still pending in that county. Mrs. Moore was appointed personal representative in May 1985. By his will, Mr. Moore left a substantial portion of his estate to his three children from a prior marriage. These children are represented by the trustee in this case.

Beginning in March 1986, Mrs. Moore paid certain amounts to herself or for her benefit from the probate estate. These activities culminated with a transfer in April 1987 of $360,000 from the estate to her bank account in Turkey. Shortly thereafter, Mrs. Moore departed Florida to live in Turkey.

As a result of these activities, legal proceedings occurred on two fronts. In the estate, the trustee obtained an order freezing the remaining assets of the estate and eliminating Mrs. Moore’s authority to control those assets. Mrs. Moore, however, was never removed as personal representative. Instead,- an administrator ad litem was appointed to prosecute the estate’s claims against Mrs. Moore.

In her absence, the probate court conducted a trial and entered a final judgment against Mrs. Moore on March 28, 1988, surcharging her for and ordering the return of five separate sums. The surcharges over and above the $360,000 transfer total approximately $175,000. Additionally, the judgment requires Mrs. Moore to file a written detailed accounting. Mrs. Moore has not complied with this judgment.

In addition to the probate proceeding, the state filed grand theft charges against Mrs. Moore in 1988 concerning the $360,-000 transfer, but not the earlier transactions.2 Since Mrs. Moore was outside the jurisdiction of the circuit court, nothing happened in this criminal proceeding until 1989 when the state determined that Mrs. Moore made frequent trips from Turkey to Switzerland to visit her daughters. As a result, the United States made a formal request of Switzerland for her extradition.

In late 1990, Switzerland honored the request of the United States and Mrs. Moore was returned to Pinellas County to stand trial on the grand theft charges. On February 28, 1991, she pleaded nolo con-tendere to the criminal charge and was sentenced to five years’ probation, conditioned upon serving six months in jail. She was also ordered to pay restitution concerning the grand theft and apparently has paid $525,000 in restitution. This amount, however, does not include any payment for the four transactions totalling $175,000 which were not a subject of the criminal proceeding.

Once Mrs. Moore had been extradited to Pinellas County, the trustee filed a motion [1361]*1361for civil and criminal contempt in the probate proceeding and served the motion on Mrs. Moore. The motion seeks to require Mrs. Moore to provide an accounting and pay the remaining amounts described in the probate court’s final judgment. The motion requests typical criminal and civil sanctions.

Mrs. Moore filed a response to the motion in which she contends that the probate court has no jurisdiction or authority to take any action against her. She correctly notes that she was extradited to this country against her will. The extradition is based on a treaty between the United States and Switzerland which was signed in Washington, D.C., on May 14, 1900. The critical provision of that treaty states:

No person surrendered by either of the Contracting States to the other shall be prosecuted or punished for any offense committed before the demand for extradition, other than that for which the extradition is granted....

Mrs. Moore maintains that the four transactions which predate the grand theft are offenses which were committed before the demand for extradition and, accordingly, the probate court cannot proceed on this matter under an extradition which is limited to the grand theft.

The probate court agreed that the extradition did not authorize it to proceed in contempt and, accordingly, refused to assert personal jurisdiction over Mrs. Moore. We agree that the probate court’s powers appear to be restricted by the extradition. We do not agree, however, that the probate court has lost personal jurisdiction over the personal representative to order her to perform her functions as required by Florida law.

The case law concerning international extradition is neither recent nor particularly helpful in this case. United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886); Smith v. Government of Canal Zone, 249 F. 273 (5th Cir. 1918); In re Reinitz, 39 F. 204 (C.C.S.D.N. Y.1889). Under the principle of specialty, as stated in Rauscher, a person who is brought into the country generally can be tried against her will only for the offense described in the extradition order. 'See Rauscher, 119 U.S. at 430, 7 S.Ct. at 246, 30 L.Ed. at 432. See generally 35 C.J.S. Extradition § 46 (1960); 31A Am.Jur.2d Extradition § 154 (1989). Despite the criminal tone of the language contained in the treaty, the decisions suggest that such treaties also prevent some civil proceedings. Smith; Reinitz. See also 31A Am. Jur.2d Extradition § 159 (1989). Recently, the United States Supreme Court declined to answer whether the principle of specialty shielded a person from service of process in a civil suit. Van Cauwenberghe v. Biard, 486 U.S. 517, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988).

In light of these authorities, we have not been convinced by the trustee that the probate court, through its criminal contempt powers, has the authority to enforce the 1988 final judgment for actions which occurred prior to the request for extradition. If we err on this point, we would prefer to err in deference to the treaty.

On the other hand, the probate court has had personal jurisdiction over Mrs. Moore in her capacity as personal representative since 1985. Mrs. Moore agreed to this personal jurisdiction long before she left for Turkey or Switzerland. She is and has been obligated to perform her duties as personal representative. § 733.601, Fla.Stat. (1985).

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Bluebook (online)
577 So. 2d 1359, 1991 Fla. App. LEXIS 3021, 1991 WL 45755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-moore-fladistctapp-1991.