Sarpel v. Eflanli

65 So. 3d 1080, 2011 Fla. App. LEXIS 8086, 2011 WL 2135575
CourtDistrict Court of Appeal of Florida
DecidedJune 1, 2011
DocketNos. 4D09-4828, 4D10-3146
StatusPublished
Cited by7 cases

This text of 65 So. 3d 1080 (Sarpel v. Eflanli) 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
Sarpel v. Eflanli, 65 So. 3d 1080, 2011 Fla. App. LEXIS 8086, 2011 WL 2135575 (Fla. Ct. App. 2011).

Opinion

STEVENSON, J.

This appeal arises from a custody determination made as part of a final judgment [1081]*1081of dissolution of marriage and subsequent orders of the circuit court granting the father’s petition for injunctive relief, requiring the mother to dismiss custody proceedings she had initiated in Turkey, and finding that the Florida court had subject matter jurisdiction to make the initial custody determination. Having considered all issues raised, we affirm the orders appealed and write to address the issue of the Florida circuit court’s jurisdiction to make the custody determination.

The Underlying Proceedings

Both the mother and the father are Turkish citizens. The father is also an American citizen and, during the relevant times, the mother had a green card application. The couple married in Florida, in 2002, and their two sons were born in Florida. It is undisputed that the family resided in Florida until March 14, 2006. At that time, the family went to Turkey. The father returned to Florida on September 12, 2006. And, on November 8, 2006, the father filed a petition for dissolution of marriage in a Florida circuit court, wherein he sought a custody ruling. At the time of filing, the mother and children were in Turkey. The mother and children returned to Florida on January 28, 2007. On May 2, 2007, the Florida circuit court rendered a final judgment of dissolution, incorporating the terms of a marital settlement agreement that designated the father the primary residential parent and afforded the mother supervised visitation to be revisited after six months.

In August of 2009, the father filed a motion seeking an injunction to preclude the mother from proceeding with litigation she had initiated in Turkey to modify child custody, arguing the Florida circuit court had exclusive jurisdiction to modify its custody decree. Following an eviden-tiary hearing, the Florida circuit court granted the father’s petition for injunctive relief and issued an order enjoining the mother from proceeding with custody litigation in Turkey and requiring her to dismiss the same with prejudice. The mother appealed the circuit court’s ruling on the petition for injunction. For the first time on appeal, the mother asserted the Florida circuit court lacked subject matter jurisdiction to make the initial custody determination because Florida was not the children’s “home state” at the time the father filed the petition for dissolution. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a child’s “home state” is the touchstone for a court’s jurisdiction to make an initial custody determination. “Home state” is defined as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” § 61.508(7), Fla. Stat. A “period of temporary absence” is part of the relevant six-month period. Id.

At the mother’s request, this court relinquished the case to the circuit court to hear evidence and make the factual findings necessary to determine whether Florida had been the children’s “home state” at the relevant time. During the evidentiary proceeding that followed, it was established the family lived in Florida up until March 14, 2006. At such time, the family went to Turkey, moving into a residence they had purchased in 2005. The father returned to Florida in September of 2006 and filed his petition for dissolution on November 8, 2006. At the time of filing, the mother and children were still in Turkey and had been in Turkey for the seven months and twenty-five days preceding the filing of the petition. At the end of 2006, the father hired Turkish counsel and initiated Hague proceedings seeking the return of the children from Turkey. On January 28, 2007, the mother and children returned to Florida.

[1082]*1082The mother testified that, when the family went to Turkey, they intended to relocate there, and the father subsequently changed his mind and returned to the U.S. According to the mother, she returned to Florida with the children to attempt to reconcile with her husband and, once here, was served with divorce papers. The mother testified that, in the face of the father’s threats that he would contact the FBI and have her removed and her son’s intended surgery, she remained in Florida and signed the marital settlement agreement. The father, on the other hand, insisted the family went to Turkey in March of 2006 for an extended vacation and it was always the family’s intent to return to Florida, citing the mother’s pending green card application. In any event, it is undisputed that, in August of 2007, after the divorce, the entire family went to Turkey and stayed there until April of 2008.

In the circuit court, and here on appeal, the father has argued that the family’s time in Turkey preceding the November-2006 filing of the petition for dissolution of marriage was nothing more than a “temporary absence” and Florida was, at all relevant times, the “home state” of the children. The mother has argued that, because the children were in Turkey for the seven months and twenty-five days preceding the filing of the petition for dissolution, Florida cannot be their “home state” and that the reasons for the children’s absence are irrelevant to the jurisdictional analysis. The circuit court sided with the father, ruling that it had jurisdiction to make the initial custody determination as Florida was the children’s “home state” at the time the father’s petition for dissolution was filed. The court found that the family’s travel to Turkey in March of 2006 was not intended to be a permanent move, that the children’s absence from Florida was a “temporary absence,” and, borrowing language from the Hague Convention and its implementing legislation — the International Child Abduction Remedies Act — that Florida remained the “habitual residence” of the children.

Jurisdiction of a Florida, CouH to Make an Initial Custody Determination under the UCCJEA

A trial court’s subject matter jurisdiction to make an initial custody determination is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See § 61.514(2), Fla. Stat. (2010) (stating that subsection (1) of statute is “exclusive jurisdictional basis” for making child custody determination); see also Hindle v. Fuith, 33 So.3d 782, 784 (Fla. 5th DCA), review denied, 42 So.3d 233 (Fla.), cert. denied, — U.S. -, 131 S.Ct. 825, 178 L.Ed.2d 557 (2010). The statute provides as follows:

(1) Except as otherwise provided in s. 61.517 [providing for “temporary emergency jurisdiction” where child is in state and has been abandoned and/or subjected to, or threatened with, abuse], a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and:
1.

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Cite This Page — Counsel Stack

Bluebook (online)
65 So. 3d 1080, 2011 Fla. App. LEXIS 8086, 2011 WL 2135575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarpel-v-eflanli-fladistctapp-2011.