MICHAEL BROOKS, APPELLANT,
v.
THERESA BROOKS, APPELLEE
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In this child custody modification appeal, the Florida Fourth District Court of Appeal reversed the trial court's denial of a motion to dismiss for lack of personal jurisdiction, holding that the trial court erred by focusing on whether the appellant submitted to jurisdiction rather than applying the statutory requirements of the Uniform Child Custody Jurisdiction Act.
The trial court erred by denying the motion to dismiss based solely on whether appellant submitted to jurisdiction. Under section 61.1308(1), Florida Statutes, the proper inquiry requires analysis of statutory factors to determine which state should assume jurisdiction, and a parent's voluntary submission to jurisdiction is irrelevant to this determination.
[1] A court lacks jurisdiction to review non-final orders from which timely notices of appeal were not filed.
[2] A trial court's order denying a motion to dismiss a child custody modification proceeding for lack of personal jurisdiction is reviewable on a non-final appeal.
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Join FLexlaw to unlock all legal intelligence“Whether a parent has submitted himself to the jurisdiction of the court is irrelevant to the proper determination of which state should assume jurisdiction in a custody dispute.”
Establishes the core holding that submission to jurisdiction is not the proper test under the Uniform Child Custody Jurisdiction Act.
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Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1985 with custody initially given to the mother (appellee). A modification changed custody to the father (appellant). Appellan…
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PER CURIAM.
This is a non-final appeal from an order denying appellant’s motion to dismiss this child custody modification proceeding for lack of personal jurisdiction. We have jurisdiction to review this matter pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i). Appellant also seeks review of two other non-final orders; however, he failed to timely file notices of appeal from those orders so this court lacks jurisdiction to review them.
The parties were divorced in 1985 and custody of the children was originally given to appellee. A modification of the final judgment was entered and custody changed to appellant. Appellant and the children moved to California in 1986. The children were in Florida in 1988 on summer visitation with appellee when appellant asked appellee to keep the children longer than planned because he was ill. Appellee petitioned for modification of child custody in September, 1988. After service of this petition, appellant filed a motion to dismiss for lack of personal jurisdiction, citing the Uniform Child Custody Jurisdiction Act and alleging that California was the home state of the children. After a hearing on -the motion to dismiss, the trial court denied appellant’s motion and found that appellant had submitted himself to the jurisdiction of the court.
We reverse the trial court’s order denying appellant’s motion to dismiss. The trial court erred when it failed to consider the requirements for determining jurisdiction pursuant to section 61.1308(1), Florida Statutes (1987). Whether a parent has submitted himself to the jurisdiction of the court is irrelevant to the proper determination of which state should assume jurisdiction in a custody dispute.
We do not have sufficient record at this point to determine whether Florida or California should assume jurisdiction in this matter because the trial court limited its inquiry to its finding that appellant submitted himself to the court’s jurisdiction. We remand this matter for the appropriate statutory inquiry and determination as provided in section 61.1308(1).
Accordingly, the order denying appellant’s motion to dismiss is reversed and remanded for further proceedings.
GLICKSTEIN, STONE and POLEN, JJ., concur.
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Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991)…onferred by consent or failure to object”); Cates v. Heffernan, 154 Fla. 422, 431, 18 So. 2d 11, 16 (1944) (“it is well settled that the parties to a cause cannot by consent confer upon a court jurisdiction of the subject matter”); Brooks v. Brooks, 546 So. 2d 100, 101 (Fla. 4th DCA 1989) (When applying the UCCJA, the question of “[w]hether a parent has submitted himself to the jurisdiction of the court is irrelevant to the proper determination of which state should assume jurisdiction in a custody dispute.”)…
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Balestrieri v. Maliska, 622 So. 2d 561 (Fla. 4th DCA 1993)…consin in compliance with the UCCJA. While several Florida courts have touched on the issue of whether personal jurisdiction is necessary to bind a non-resident parent to a Florida custody judgment, none have had to decide it. In Brooks v. Brooks, 546 So. 2d 100, 101 (Fla. 4th DCA1989), this court stated: Whether a parent has submitted himself to the jurisdiction of the court is irrelevant to the proper determination of which state should assume jurisdiction in a custody dispute. In Fox v. Webb, 495 So. 2…
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Rothman v. Rothman, 599 So. 2d 260 (Fla. 4th DCA 1992)…isdiction to make temporary (custody) orders, we reject appellee’s argument that Georgia obtained subject matter ' jurisdiction to make permanent child custody determinations. Steckel v. Blafos, 549 So. 2d 1211 (Fla. 4th DCA 1989); Brooks v. Brooks, 546 So. 2d 100 (Fla. 4th DCA 1989). The final judgment provided that Florida would retain jurisdiction as to matters involving custody of the child and the record shows that the child’s primary contacts remain in Florida. See Yurgel v. Yurgel, 572 So. 2d 1327 (Fla…