JOYCE COSTANTINO, APPELLANT,
v.
FRANK COSTANTINO, APPELLEE
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Joyce Costantino appealed a trial court order modifying a 1968 divorce decree to change custody of the parties' two sons from mother to father. The Florida appellate court reversed and remanded, directing dismissal of the modification petition for lack of subject matter jurisdiction, finding no evidence the children had been abandoned, abused, or neglected as required by statute.
The trial court lacked subject matter jurisdiction to modify the custody order because there was no competent evidence that the children had been abandoned, abused, or neglected in their Michigan home. The petition for modification must be dismissed for lack of subject matter jurisdiction.
[1] A court lacks subject matter jurisdiction to modify a divorce decree concerning child custody when there is no competent proof that the children were abandoned, abused, o…
[2] A trial court's order modifying child custody based on a hearing where one party was denied a meaningful opportunity to be heard requires reversal.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The testimony already taken at the "final hearing" below contains no competent proof whatever that, as required by that subsection, the children had been abandoned, abused or neglected at their home in Michigan.”
Establishes the basis for reversing the trial court's custody modification—lack of statutory evidence required for jurisdiction.
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Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1968 with custody awarded to the mother. The children lived in Michigan for eleven years following the divorce. The father arr…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
On the authority of Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980), we reverse the order below, which modified a 1968 divorce decree by changing custody of the parties’ two boys from the mother to the father. We entirely agree with and adopt the reasoning and analysis of the Hegler decision, the facts of which are virtually on all fours with this one.1 See also, Tilden v. Locke, 383 So. 2d 976 (Fla. 3d DCA 1980). Unlike Hegler, however, we see no reason for remanding the cause for a determination of whether the trial court had jurisdiction under Section 61.1308(l)(c), Florida Statutes (1977). The testimony already taken at the “final hearing” below2 contains no competent proof whatever that, as required by that subsection, the children had been abandoned, abused or neglected at their home in Michigan. We therefore direct that, after remand, the petition for modification be dismissed for lack of subject matter jurisdiction.3
Reversed and remanded with directions.
. We see no valid distinction between the He-gler situation, in which the father himself took possession of the child in her home state, and this one, in which he arranged for the children’s transportation to Florida after they had “run away from home.”
. The hearing, which was noticed for 11:30 a. m. on June 5, 1979, commenced on an apparently ex parte basis without the wife’s being represented. The father, the two boys, and their five-year-old half-brother “testified” in an informal colloquy with the trial court. After only fourteen pages of transcript, and thus no more than 15 minutes after the hearing began, the following appears:
MR. MAHER [wife’s counsel]: Your Hon-or, I am Stephen Maher. THE COURT: Who are you? MR. MAHER: Stephen Maher. Judge, I was not called when the case was called. THE COURT: What case? MR. MAHER: Costantino. THE COURT: Well I was here at 28 minutes after 11:00. This case was called. MR. MAHER: I beg to differ with you. THE COURT: You can differ with me all you want. If you are involved in this case, sit down. For what purpose are you here? MR. MAHER: I have an appearance to be filed and I represent the wife in this case and I have a memorandum of law on the issue of jurisdiction. THE COURT: Frankie, do you like living with your two half-brothers? FRANKIE: Yes. THE COURT: Do you want them to live with you? FRANKIE: Yes. THE COURT: All right, any other questions? MR. NORTON [husband’s counsel]: No, Judge. THE COURT: The court is prepared to rule at this time. MR. MAHER: May I have a moment to give you an argument relative to this case? THE COURT: The time for argument is all up, counsel.
We have been here a long time and I will rule that the husband has the permanent care, custody and control of the children. MR. MAHER: I would object to this procedure and I was here at 11:28. THE COURT: Good day to you. MR. MAHER: We would object to the Court’s exercising this jurisdiction. I prepared a lengthy memorandum of law and I would request the Court to give me a moment to argue this matter. THE COURT: This case is terminated and this case is over. Please prepare the order, Mr. Norton. MR. NORTON: Yes. (Thereupon the hearing was concluded.) [e. s.] If the court did not lack subject matter jurisdiction, the trial judge’s deprivation of the wife’s right and opportunity to be heard — as so clearly demonstrated by the record — would require the granting of a new and fair trial on the merits. Cavalier v. Ignas, 290 So. 2d 20 (Fla.1974); A. Z. v. State, 383 So. 2d 934 (Fla. 5th DCA 1980); Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976).
. This disposition will be, of course, without prejudice to appropriate proceedings in Michigan which, as the place they had lived for eleven years after their parents’ divorce, was and remains the children’s “home state.” § 61.1306(5), Fla.Stat. (1979); see Hegler v. Hegler, supra, at 383 So. 2d 1137, note 6.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vivienne Brown and Arthur Brown v. TAN, 395 So. 2d 1249 (Fla. 3d DCA 1981)…child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.” There is simply no evidence in this case which would support such a finding of abuse or neglect by the father. See Costantino v. Costantino, 386 So. 2d 1274 (Fla.3d DCA 1980) (no competent proof that children had been abandoned or neglected). See, e. g., Hegler v. Hegler, 383 So. 2d 1134 (Fla.5th DCA 1980) (remanded for determination of neglect where mother’s friend indulged in excessive drinking of alc…
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Snider v. Cornelia N. Snider, 686 So. 2d 802 (Fla. 4th DCA 1997)…d Custody Jurisdiction Act (UCCJA). Whether the jurisdictional requirements of section 61.1308 of the UCCJA have been met is a question of subject matter jurisdiction. Guerra v. Fischer, 463 So. 2d 536 (Fla. 4th DCA 1985); Costantino v. Costantino, 386 So. 2d 1274 (Fla. 3d DCA 1980); Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980). Subject matter jurisdiction is conferred upon a court by a constitution or statute, and cannot be created by waiver, acquiescence or agreement of the parties. State Dep’t of…
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Bonis v. Bonis, 420 So. 2d 104 (Fla. 3d DCA 1982)…nt proceedings. On remand the trial court is to proceed in accordance with Section 61.-1314(1), Florida Statutes (1979) and if appropriate, to dismiss the child custody matters for lack of subject matter jurisdiction. See Constantino v. Constantino, 386 So. 2d 1274 (Fla. 3d DCA 1980). . Section 61.1314, Florida Statutes: Simultaneous proceeding in other states.— (1) A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the cust…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hegler v. Hegler, 383 So. 2d 1134 (Fla. 5th DCA 1980)
- Cavalier v. Ignas, 290 So. 2d 20 (Fla. 1974)
- In re The Interest of A. Z. v. State, 383 So. 2d 934 (Fla. 5th DCA 1980)
- Connors v. Connors, 327 So. 2d 877 (Fla. 2d DCA 1976)
- Miller v. Agrico Chem. Co., 383 So. 2d 1137 (Fla. 1st DCA 1980)
- Tilden v. Locke, 383 So. 2d 976 (Fla. 3d DCA 1980)