Roby v. Nelson

562 So. 2d 375, 1990 WL 67313
CourtDistrict Court of Appeal of Florida
DecidedMay 23, 1990
Docket89-1606
StatusPublished
Cited by8 cases

This text of 562 So. 2d 375 (Roby v. Nelson) 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
Roby v. Nelson, 562 So. 2d 375, 1990 WL 67313 (Fla. Ct. App. 1990).

Opinion

562 So.2d 375 (1990)

Laurie J. ROBY, Appellant,
v.
Wayne B. NELSON, Appellee.

No. 89-1606.

District Court of Appeal of Florida, Fourth District.

May 23, 1990.
Rehearing Denied July 6, 1990.

*376 William L. Roby of Crary, Buchanan, Bowdish and Bovie, Stuart, for appellant.

Russell J. Ferraro, Jr. of DeSantis, Cook, Ferraro & McCarthy, P.A., Stuart, for appellee.

WARNER, Judge.

This is an appeal from an order granting a former husband's motion to dismiss or abate a child custody modification action and other related actions based on the continuing jurisdiction provisions of the Uniform Child Custody Jurisdiction Act. We affirm on all points and address the issue presented on the interpretation of the U.C.C.J.A.

The parties were divorced in Iowa in 1979 at which time the wife, by agreement, retained custody of the minor daughter. In 1987 the wife and child moved to Florida with the wife's new husband. The former husband also left Iowa for Kansas. After returning from a holiday visit with her father, the daughter requested that she be allowed to take an extended visitation with her father in Colorado where he moved in 1988. After extensive negotiations between the wife and the husband resulted in a written agreement, the daughter was permitted this extended visit on the condition that it was temporary only, that the former husband would continue to make child support payments to the wife in Florida, and that the child would be returned to Florida at the end of the visitation period. The child went to Colorado in the end of January, 1988.

Despite his agreement, the former husband filed a petition in Colorado, only five months later, requesting modification of the Iowa decree to give him permanent residential custody of the daughter. While first contesting jurisdiction of the Colorado court, the wife travelled to Colorado and submitted to that court's jurisdiction and entered into an agreement with the husband giving him residential custody of the daughter. This agreement appointed a guardian ad litem for the child, permitted the wife to have summer visitation, and abated the child support provisions of the Iowa decree. The parties appeared before the Colorado Court which signed an order approving the stipulation in August, 1988. The order recited that the matter was heard "on its merits."

After the agreement was signed, the wife and daughter returned to Florida where the daughter expressed her definite desire not to return to Colorado. The ex-husband thereafter agreed to the daughter's reassimilation into the wife's family, and he even signed a consent to his daughter's adoption by the wife's new husband. The wife and her new husband apparently elected not to proceed with the adoption. Instead, after the child had resided in Florida for the required six months the wife filed the instant petition for relief from the Colorado decree, or alternatively, for a modification of the Colorado decree; for child support; for breach of contract; for fraud; and to pierce the corporate veil of the husband's Colorado corporation.

The husband moved to dismiss or transfer the cause to Colorado, asserting lack of personal jurisdiction and jurisdiction over the subject matter in that Colorado was the more appropriate forum for litigation of the custody issue. Despite his contention, he did not seek to reactivate the Colorado *377 custody proceedings, and the Colorado court entered an order dismissing the proceedings for lack of prosecution. Subsequently, the Florida trial court granted the husband's motion to dismiss/abate on the ground that since Colorado had retained jurisdiction, the Florida courts should decline to exercise jurisdiction. The court additionally dismissed the related actions on child support, breach of contract, and fraud both on the grounds of lack of Florida jurisdiction and the retention of jurisdiction over these issues in Colorado.[1]

The issue presented in this case regards the proper application of the Uniform Child Custody Jurisdiction Act's provisions concerning modification of a custody decree of another state. Section 61.133, Florida Statutes (1987). Codifying and strengthening the principle of recognition of out of state custody decrees was central to the purposes of the Act which goals were to ...

(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child.
(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
(6) Avoid relitigation of custody decisions of other states in this state insofar as feasible.
(7) Facilitate the enforcement of custody decrees of other states.
(8) Promote and expend the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child.
(9) Make uniform the law with respect to the subject of this act among states enacting it.

Florida and Colorado have both enacted the provisions of the U.C.C.J.A. in substantially similar form. Sections 61.1302-61.1348, Florida Statutes (1987); Section 14-13-101 et seq., C.R.S. (1987 Repl. Vol. 6B).

Florida Statute Section 61.133 (1987) governs the issue of continuing jurisdiction of a state over custody decrees:

Modification of custody decree of another state.
(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless:
(a) It appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree; and
(b) The court of this state has jurisdiction.
(Emphasis supplied.)

This statute implements the Act's purpose of recognizing the continuing exclusive jurisdiction of the state entering the initial decree until that state loses all jurisdiction under the act or declines to exercise its jurisdiction in accordance with the best interests *378 of the child. Steckel v. Blafas, 549 So.2d 1211 (Fla. 4th DCA 1989); Hamill v. Bower, 487 So.2d 345 (Fla. 1st DCA 1986). See also Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam.L.Q. 203, 214 (1981).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kemper v. Kemper
807 So. 2d 711 (District Court of Appeal of Florida, 2002)
Stock v. Stock
677 So. 2d 1341 (District Court of Appeal of Florida, 1996)
Chaddick v. Monopoli
677 So. 2d 347 (District Court of Appeal of Florida, 1996)
Sanchez v. Horrell
660 So. 2d 366 (District Court of Appeal of Florida, 1995)
Benitez v. Konfino
624 So. 2d 861 (District Court of Appeal of Florida, 1993)
Maliska v. Broome
609 So. 2d 711 (District Court of Appeal of Florida, 1992)
In Re the Marriage of Mosier
836 P.2d 1158 (Supreme Court of Kansas, 1992)
Yurgel v. Yurgel
572 So. 2d 1327 (Supreme Court of Florida, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
562 So. 2d 375, 1990 WL 67313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roby-v-nelson-fladistctapp-1990.