BARRY DREW CLEVELAND, APPELLANT,
v.
STACEY RENEE CLEVELAND, APPELLEE
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Barry Cleveland sought to set aside a dissolution of marriage and custody judgment on grounds of lack of personal jurisdiction over his ex-wife Stacey. The Fourth District affirmed the trial court's grant of relief under Rule 1.540(b) but reversed the complete vacatur of the judgment, holding that the court had subject matter jurisdiction to dissolve the marriage and award custody despite lacking personal jurisdiction over the non-filing spouse.
The court had subject matter jurisdiction to dissolve the marriage because the filing spouse met residency requirements and the non-filing spouse received actual notice. The court also had subject matter jurisdiction to award custody under the UCCJA because Florida was the child's home state. Therefore, the judgment as to dissolution and custody was not void despite the lack of personal jurisdiction over the non-filing spouse, and it was error to vacate the entire judgment.
[1] A trial court has subject matter jurisdiction to dissolve a marriage if the filing spouse meets residency requirements and the other spouse receives actual notice of the…
[2] A court can dissolve a marriage even if it lacks personal jurisdiction over one of the spouses, provided it has subject matter and personal jurisdiction over the filing s…
Previewing 2 of 6 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“If the trial court has subject matter and personal jurisdiction over the filing spouse, it can dissolve the marital relationship even if it lacks personal jurisdiction over the other spouse.”
Establishes the key principle that personal jurisdiction over both spouses is not required for a valid dissolution of marriage.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe husband filed a dissolution of marriage petition in Florida and alleged compliance with the six-month residency requirement. The wife received act…
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FARMER, Judge.
We affirm the trial court’s grant of relief under rule 1.540(b),1 which was based on a finding that the court lacked personal jurisdiction over the mother. We find it necessary, however, to reverse the court’s holding that the final judgment of dissolution of marriage should be set aside in its entirety, because we conclude that the court did not lack jurisdiction to dissolve the marriage and to award custody to the petitioning father. The trial court had subject matter jurisdiction to dissolve the parties’ marriage because it is undisputed that the husband alleged and met the residence requirements of section 61.021,2 and the wife admitted that she received actual notice of the dissolution proceedings by service of process. Amstein v. Amstein, 422 So. 2d 1052 (Fla. 4th DCA 1982). If the trial court has subject matter and personal jurisdiction over the filing spouse, it can dissolve the marital relationship even if it lacks personal jurisdiction over the other spouse. Orbe v. Orbe, 651 So. 2d 1295, 1297 (Fla. 5th DCA 1995). It was therefore error to vacate the final judgment to the extent that it dissolved the parties’ marriage, because that part of the judgment was not void.
The trial court also had subject matter jurisdiction to provide for custody of the children under the UCCJA Section 61.1308(l)(a),3 provides for subject matter jurisdiction if Florida “[i]s the home state of the child at the time of commencement of the proceeding.” The statute defines “home state” as the:
“state in which the child, immediately preceding the time involved, lived with his or her parents, a parent, or a person acting as parent for at least 6 consecutive months....”
§ 61.1306(5), Fla. Stat. (1995). It is uncon-troverted that the child had been living with the father in Florida for more than 6 months before he filed the dissolution of marriage petition. Personal jurisdiction is not required to make an out-of-state parent a party to a custody ease in which the Florida court has subject matter jurisdiction. Warfield v. Warfield, 661 So. 2d 924, 925-26 (Fla. 4th DCA 1995), rev. denied, 669 So. 2d 252 (Fla.), cert. denied, — U.S. -, 117 S.Ct. 59, 136 L.Ed.2d 21 (1996); Balestrieri v. Maliska, 622 So. 2d 561 (Fla. 4th DCA 1993). Hence, the finding that the trial court never obtained personal jurisdiction over the wife did not render the custody provision in the final judgment void.
REVERSED AND REMANDED FOR CONSISTENT PROCEEDINGS.
GUNTHER, C.J., and STONE, J., concur. .See Fla.R.Civ.P. 1.540(b)(4) ("The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.”). The trial court implicitly found that the mother’s motion was made within a reasonable time, given her particular circumstances.
. See § 61.021, Fla. Stat. (1995) ("To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.”).
. See § 61.1308(l)(a), Fla. Stat. (1995).
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Citator
Cited By
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Pastor v. Pastor, 929 So. 2d 576 (Fla. 4th DCA 2006)…. 2d 472, 475 (Fla. 1st DCA 2003). We recognize that in other contexts, such as marriage dissolution, residency has been associated with subject matter jurisdiction. See Bursiel v. Bursiel, 124 Fla. 187, 168 So. 3, 6 (1936); Cleveland v. Cleveland, 692 So. 2d 304, 305 (Fla. 4th DCA 1997); Orbe v. Orbe, 651 So. 2d 1295, 1297 (Fla. 5th DCA 1995). Nevertheless, we conclude that in probate, domicile is simply a fact issue, the significance of which will vary from case to case. In probate, domicile is treated as…
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Mikulec v. Mikulec, 47 So. 3d 851 (Fla. 4th DCA 2010)…a.1995) (recognizing “Florida’s residency requirement is jurisdictional and must be alleged and proved in every case .... corroborating testimony cannot be waived by an admission that the residency requirement has been met”); Cleveland v. Cleveland, 692 So. 2d 304, 305 (Fla. 4th DCA 1997). In denying the husband’s motion to dismiss, the trial court did not make any findings regarding where the husband resided before the wife petitioned for divorce in Florida, and the record before this court does not demonst…
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Schmoker v. Schmoker (Fla. 2d DCA 2021)…ed, and its ruling was erroneous for several reasons. First, to the extent that it questioned its personal jurisdiction over the parties, we note that a court must have personal jurisdiction only over the filing spouse. See Cleveland v. Cleveland, 692 So. 2d 304, 305 (Fla. 4th DCA 1997) ("If the trial court has subject matter and personal jurisdiction over the filing spouse, it can dissolve the marital relationship even if it lacks personal jurisdiction over the other spouse." (citing Orbe v. Orbe, 651 So.…
Authorities Cited
- Orbe v. Orbe, 651 So. 2d 1295 (Fla. 5th DCA 1995)
- Arnstein v. Arnstein, 422 So. 2d 1052 (Fla. 4th DCA 1982)
- Balestrieri v. Maliska, 622 So. 2d 561 (Fla. 4th DCA 1993)
- Warfield v. Warfield, 661 So. 2d 924 (Fla. 4th DCA 1995)