SANDRA ELAINE KILGORE, APPELLANT,
v.
ANDRE NOLAN DAWSON, APPELLEE

Fla. 3d DCA | 1996-06-05
No. 95-3541
Before NESBITT, COPE and GERSTEN, JJ.
675 So. 2d 217 Florida District Court of Appeal, Third District (1996)

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Synopsis

Sandra Kilgore appeals the dismissal of her Florida child support action in favor of a concurrent North Carolina action filed by the father one day earlier. The court reversed, holding that although North Carolina was initially the child's home state, Florida became the more appropriate forum after the mother and child relocated there, and the North Carolina court itself had already declined jurisdiction as an inconvenient forum.


Holding

The court reversed the dismissal and remanded the case for reinstatement of the action, holding that Florida is the appropriate forum to hear child support and custody issues despite North Carolina being the child's home state at the time of filing, particularly where the North Carolina court itself had already declined to exercise jurisdiction as an inconvenient forum.


Headnotes

[1] A Florida court may reverse an order dismissing a child support action in favor of a foreign action when the foreign court subsequently determines it is an inconvenient f…

[2] A foreign court's determination that it is an inconvenient forum and its decision to defer jurisdiction to Florida are persuasive and should be considered by a Florida co…

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Key Quotes

“The trial court dismissed the appellant mother's Florida action in favor of a North Carolina action filed by the appellee father one day earlier.”

Establishes the basic procedural posture and the trial court's reasoning for dismissal.

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Facts & Procedural History

The father filed a child support and custody action in North Carolina. The next day, the mother filed a similar action in Florida. Both the mother and…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Sandra Elaine Kilgore appeals an order dismissing her action for child support. We reverse.

The trial court dismissed the appellant mother’s Florida action in favor of a North Carolina action filed by the appellee father one day earlier. The North Carolina action raised issues falling within the Uniform Child Custody Jurisdiction Act, as well as issues of support which are not covered by the Act. See Chapoteau v. Chapotean, 659 So. 2d 1381, 1384 n. 1 (Fla. 3d DCA 1995). After both lawsuits were filed, the mother and child relocated to Miami, Florida, where the father also resides.

The trial court dismissed the complaint, reasoning that North Carolina was the child’s home state at the time the father filed in North Carolina. Further, the North Carolina action was first filed by one day.1

In the meantime, the North Carolina trial judge entered an order finding that North Carolina is, under the circumstances, an inconvenient forum. The North Carolina court declined to exercise jurisdiction and deferred jurisdiction to Florida. We entirely agree with the North Carolina court’s reasoning on this point.2 See § 61.1316, Fla.Stat. (1995); see also Odom v. Odom, 620 So. 2d 1130 (Fla. 1st DCA 1993).

The order under review is reversed and the cause remanded with directions to reinstate the action.

. Although we need not reach the point, there is a question whether the North Carolina action is properly viewed as first filed. The mother had initiated negotiations with the father, stating that she intended to file a child support suit, but proposed to refrain from filing so that the parties could reach a negotiated agreement out of court. While the negotiations were ongoing, and without giving notice of his intentions, the father filed the North Carolina action. The mother filed in Miami the next day.

. The North Carolina trial court’s order states in part:

THIS CAUSE, coming on to be heard on Defendant’s Motion to Dismiss, and being heard, before the Honorable Peter L. Roda, District Court Judge Presiding, on March 5, 1996, the Court finds the following facts:
11. That the major issues in this matter will be Dawson's visitation of the minor child and Dawson's child support to the minor child.

12. That information concerning Dawson's income and assets are more readily available in Florida, where Dawson lives and where he most recently worked.

13. That information concerning Dawson's visitation is more readily available in Florida, where Kilgore and the minor child reside.

14. That the best interest of the minor child would be better served if this matter was heard in Florida.

15. That the most convenient forum is where the Plaintiff, Defendant, and the minor child reside.

Based on the foregoing findings of fact, the Court makes the following CONCLUSIONS OF LAW:

2. That North Carolina has a basis for jurisdiction over the child custody and support issues because North Carolina was the minor child's home state.

3. That Florida is a more appropriate forum to hear the issues of visitation and support because Dawson, Kilgore and minor child all reside in Florida.

NOW THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED as follows: 2. That Kilgore's motion to dismiss pursuant to Section 50A-7 of the North Carolina General Statutes that North Carolina is an inconvenient forum is granted.

3. That the Court declines to exercise jurisdiction in this matter and defers jurisdiction to Florida.

4.That this matter is dismissed with prejudice.

This the 12th day oí March, 1996.

N_ The Honorable Peter L. Roda District Court Judge Presiding


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