EDITH MARIE ANDERSON, APPELLANT,
v.
KAYE FRANK ANDERSON, APPELLEE
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In a dissolution of marriage case with competing filings in two counties, the Third District affirmed the trial court's abatement of the Dade County action and transfer of venue to Lee County, holding that dissolution actions are transitory rather than local actions and venue is proper in the county where the marriage was last domiciled, not where real property is located.
The court held that abatement is a recognized procedural action when a prior action involving the same parties and cause of action is pending in another court of like jurisdiction. An action commences upon filing the complaint or petition, and service on the defendant is not essential to jurisdiction over the subject matter. Dissolution actions are transitory, not local actions; venue is proper in the county where the intact marriage was last evidenced, not where real property is located.
[1] A state court may abate an action upon a showing that a prior action involving the same parties and cause of action is pending in the same court or another court of like…
[2] An action is commenced when the complaint or petition is filed, and continues pending until the rendition of a final judgment or the issuance of an appellate court mandat…
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Join FLexlaw to unlock all legal intelligence“a state court may abate an action upon a showing that a prior action involving the same parties and cause of action is pending in the same court or another court of like jurisdiction”
Establishes that abatement is a recognized procedural remedy in Florida
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Join FLexlaw to unlock all legal intelligenceKaye Frank Anderson filed a dissolution action in Lee County on April 4, 1989, where the parties were last domiciled during their marriage. Edith Mari…
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FERGUSON, Judge.
On April 4, 1989, Kaye Frank Anderson filed an action in Lee County to dissolve his marriage to Edith Marie Anderson. She allegedly avoided his repeated attempts to serve her with process and filed her own dissolution of marriage action in Dade County on June 1, 1989. Although the parties owned real property in Dade County that was a subject of the dissolution action, Lee County had been the last domicile jurisdiction of the parties during the marriage. On Mr. Anderson’s motion, the trial court abated Mrs. Anderson’s Dade County action in deference to the Lee County action.
Mrs. Anderson contends here that (1) an abatement is not a recognized procedural action, (2) the Lee County action was not earlier in time because she was never served, and (3) the dissolution action should be tried in Dade County as a local action because both dissolution actions seek a partitioning of real property which is located in Dade County.
Contrary to the appellant’s contention, a state court may abate an action upon a showing that a prior action involving the same parties and cause of action is pending in the same court or another court of like jurisdiction. Koehlke Components, Inc. v. South East Connectors, Inc., 456 So. 2d 554 (Fla. 3d DCA 1984).1
An action is commenced when the complaint or petition is filed, Rule 1.050, Florida Rules of Civil Procedure, and continues pending until the rendition of a final judgment, or the issuance of an appellate court mandate where an appeal is taken. Bonis v. Bonis, 420 So. 2d 104 (Fla. 3d DCA 1982), rev. denied, 430 So. 2d 450 (Fla.1983); Kornblum v. Heflin, 183 So. 2d 843 (Fla. 2d DCA), cert. denied, 189 So. 2d 632 (Fla.1966); 1 Fla.Jur.2d Actions § 35 (1977). Service on the defendant is not essential to jurisdiction over the subject matter. Bon-is.
In a dissolution action venue is located in the single county where the intact marriage was last evidenced by a continuing union of the partners who intended to remain there. Goedmakers v. Goedmakers, 520 So. 2d 575 (Fla.1988). The fact that the dissolution action involves real property located in some other county does not make the dissolution action a local action requir- tag that it be brought in the county where the real property is located. Id.
The trial judge was correct in abating the Dade County action and transferring venue to Lee County with instructions that the “Wife may bring whatever claims she previously sought in Dade County, relating to the marriage, in ... [the] Lee County case.”
Affirmed.
. The abatement aspect of the order on review is mooted by the simultaneous transfer of venue provision in the same order.
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Fasco Indus., Inc. v. Goble, 678 So. 2d 916 (Fla. 5th DCA 1996)…Casualty & Surety Co., 506 So. 2d 1162, 1164 (Fla. 3d DCA 1987) (explaining rule against splitting causes of action). Further, they argued that where the lawsuit first was filed should determine where jurisdiction lies. [*917] Anderson v. Anderson, 563 So. 2d 169 (Fla. 3d DCA 1990): The trial court denied the motion relying upon Mabie v. Garden Street Mgt. Corp., 397 So. 2d 920 (Fla.1981). In Mabie, the Florida Supreme Court held that when a trial court is presented with two actions between the same parties…
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RED OAK Farm, Inc. v. City OF Ocala, 636 So. 2d 97 (Fla. 5th DCA 1994)…the action presently pending before this court. The failure to abate the second action was a departure from the essential requirements of law. International Surplus Lines Ins. Co. v. Markham, 580 So. 2d 251 (Fla. 2d DCA 1991); Anderson v. Anderson, 563 So. 2d 169 (Fla. 3d DCA 1990); Dhondy v. Schimpeler, 528 So. 2d 403 (Fla. 3d DCA), review denied, 534 So. 2d 401 (Fla.1988). The petition for writ of certiorari is granted and the order denying the motion to abate is quashed. This case is remanded for proceedi…
Authorities Cited
- Myers v. State, 520 So. 2d 575 (Fla. 1988)
- Koehlke Components, Inc. v. S. E. Connectors, Inc., 456 So. 2d 554 (Fla. 3d DCA 1984)
- Frances Kornblum under the Will of E. L. Kornblum v. Heflin, 183 So. 2d 843 (Fla. 2d DCA 1966)
- Bonis v. Bonis, 420 So. 2d 104 (Fla. 3d DCA 1982)
- Otis v. Weider, 189 So. 2d 632 (Fla. 1966)
- Bernstein v. Common Mkts., Inc., 189 So. 2d 632 (Fla. 1966)