PHYLLIS SCARSO, THE PATERNAL GRANDMOTHER, APPELLANT,
v.
JOSEPH D. SCARSO AND DONNA LINDSEY F/K/A DONNA SCARSO, APPELLEES
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A paternal grandmother appealed a non-final custody order, challenging the lower court's jurisdiction and notice procedures. The appellate court affirmed the lower court's assumption of jurisdiction and custody determination, though it struck language suggesting the grandmother had been personally served.
The lower court properly assumed jurisdiction under the Uniform Child Custody Jurisdiction Act and validly determined custody despite the technical notice deficiency being waived. Although the grandmother was not personally served, personal jurisdiction over her was not a prerequisite to the court's determination of custody when she did not have custody of the child at that time.
[1] A court may assume jurisdiction over a child custody case under the Uniform Child Custody Jurisdiction Act.
[2] A party waives a claim of insufficient notice of a hearing if no objection is raised for an extended period and no attack is made on the resulting order.
Previewing 2 of 4 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“Once asserted, the objection based upon lack of jurisdiction over the person is preserved for all purposes and is not waived because affirmative relief is sought.”
Establishes that a timely jurisdictional objection is not waived by seeking affirmative relief
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Join FLexlaw to unlock all legal intelligencePhyllis Scarso, the paternal grandmother, sought custody of a child in Florida courts while custody was also being litigated in Ohio. The grandmother …
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HERSEY, Chief Judge.
This is an appeal of a non-final order dealing with custody of a child. Appellant raises two issues which she treats as three points on appeal. The first point we determine to be wholly without merit.
Appellant is the paternal grandmother of the child whose custody is being sought in the courts of Florida and Ohio. Our disposition of the first point affirms the lower court’s assumption of jurisdiction in the case based upon the Uniform Child Custody Jurisdiction Act.
Appellant next points out that since she received only seventeen days’ notice of the hearing on custody, rather than twenty days as mandated by section 61.1312(2), Florida Statutes (1985), the order must be vacated. While this would ordinarily be a correct position, Trujillo v. Trujillo, 378 So. 2d 812 (Fla. 3d DCA 1979), the record discloses that no objection was filed on this basis for well over a year nor was any attack made on the order entered as a result of that hearing. We therefore conclude that the technical deficiency was waived.
Finally appellant correctly contends that the lower court did not obtain personal jurisdiction over her. Appellant initially contested jurisdiction and thereafter sought affirmative relief. Once asserted, the objection based upon lack of jurisdiction over the person is preserved for all purposes and is not waived because affirmative relief is sought. See Campbell v. Landmark First Nat’l Bank of Ft. Lauderdale, 421 So. 2d 813 (Fla. 4th DCA 1982); Green v. Roth, 192 So. 2d 537 (Fla. 2d DCA 1966). We note, however, that acquisition of jurisdiction over the person of appellant was not a prerequisite to the action of the court in determining the custody issue. Appellant did not have custody of the child at that time. See In the Interest of J.S., 404 So. 2d 1144 (Fla. 5th DCA 1981), appeal dismissed, 412 So. 2d 467 (Fla.1982). See also § 61.1322, Fla.Stat. (1985).
Because it is a legally incorrect statement we strike the paragraph numbered (3) of the order appealed, as well as the finding upon which that paragraph is based. In all other respects, we affirm.
AFFIRMED AS MODIFIED.
LETTS and DELL, JJ., concur.
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Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998)…c., 497 So. 2d 711, 711 (Fla. 4th DCA 1986)("Had Cummings not invoked the jurisdiction of the trial court by himself, filing a cross-claim asking for affirmative relief, he could have maintained his defensive posture....”). But see Scarso v. Scarso, 488 So. 2d 549, 550 (Fla. 4th DCA 1986) ("Once asserted, the objection based upon lack of jurisdiction over the person is preserved for all purposes and is not waived because affirmative relief is sought.”); Ferrari v. Rubin, 616 So. 2d 611, 612 (Fla. 5th DCA 1993…
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Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996)…So. 2d 1192, 1193 (Fla. 2d DCA 1981) ("request for affirmative relief ... constitutes a waiver of the jurisdictional challenge”), review denied, 417 So. 2d 329 (Fla.1982). But see Logan v. Mora, 555 So. 2d 1267 (Fla. 3d DCA 1989); Scarso v. Scarso, 488 So. 2d 549, 550 (Fla. 4th DCA 1986) ("Once asserted, the objection based upon lack of jurisdiction over the person is preserved for all purposes and is not waived because affirmative relief is sought.”) . Without timely objection, the rule is clear, a general…
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Logan v. Vita Mora, 555 So. 2d 1267 (Fla. 3d DCA 1989)…s first pleading, or it is waived. Fla.R.Civ.P.Rule 1.140(b), (h). “Once asserted, the objection based upon lack of jurisdiction over the person is preserved for all purposes and is not waived because affirmative relief is sought.” Scarso v. Scarso, 488 So. 2d 549, 550 (Fla. 4th DCA 1986). Logan raised the defense of lack of personal jurisdiction in his first motion to dismiss. The trial court denied that motion and Logan repeated the same defenses in his second motion; thus, Logan did not waive the issue of…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trujillo v. Trujillo, 378 So. 2d 812 (Fla. 3d DCA 1979)
- Green v. Roth, 192 So. 2d 537 (Fla. 2d DCA 1966)
- In the Interest of J. S. v. Seekell, 404 So. 2d 1144 (Fla. 5th DCA 1981)
- Campbell v. Landmark First Nat'l Bank of FT. Lauderdale, 421 So. 2d 813 (Fla. 4th DCA 1982)