MARGARITA FOTI, APPELLANT,
v.
NIKOLAS CAMEJO, APPELLEE
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A former wife appealed a trial court order transferring venue in a post-dissolution modification action from Miami-Dade County to Broward County. The appellate court reversed, holding that venue was proper in Miami-Dade County based on the former wife's residency and that the trial court erred in transferring the case merely because the original divorce judgment was entered in Broward County.
The trial court erred in transferring venue. Venue was proper in Miami-Dade County based on the former wife's residency, and the plaintiff's choice of proper venue is presumptively correct. A trial court may not transfer a case to another county where venue is also proper merely because the original judgment was entered in that county.
[1] Venue for modification of child support and visitation is proper in the circuit court of the county where either parent resides, in addition to the circuit court of origi…
[2] A trial court cannot transfer a proceeding based upon improper venue in advance of making an improper venue determination.
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“A plaintiffs choice of venue is presumptively correct, and the burden is upon the party seeking a change of venue to demonstrate the impropriety of the plaintiffs selection.”
Establishes the fundamental principle that the plaintiff's venue selection is presumptively correct and the opposing party bears the burden of proving impropriety.
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Join FLexlaw to unlock all legal intelligenceMargarita Foti and Nikolas Camejo were divorced pursuant to a final judgment entered in Broward County. The former wife and the two children are now r…
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PER CURIAM.
Appellant, Margarita Foti (“former wife”), appeals an order transferring venue in her post-dissolution action seeking modification of visitation and child support. We reverse finding the trial court erred in transferring venue from Miami-Dade County to Broward County.
Nikolas Camejo (“former husband”) and the former wife were divorced pursuant to a final judgment entered in Broward County. The former wife and the party’s two children are now residents of Miami-Dade County. Thus, as recognized in the trial court’s order, venue was proper in the Broward County circuit court, which was the circuit court of original jurisdiction, and also in the Miami-Dade County circuit court, based upon the former wife’s residency. See § 61.13(l)(a), Fla. Stat. (2001); § 61.14(1), Fla. Stat. (2001); Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995)(actions for modification of custody may be brought in the circuit where either of the parents resides).
Despite this recognition, the trial court granted the former husband’s request to transfer venue to Broward County stating: “the undersigned believes that the decision of where venue should lie in this action should be that of the Broward County Judge who had initial jurisdiction over this case.” We disagree.
Florida Rule of Civil Procedure, Rule 1.060, provides that an action which has been filed in the wrong county, may be transferred to the proper county in accordance with the venue statutes. We find it obvious that the rule contemplates that once a motion to transfer proceedings based upon improper venue has been filed, it is then the responsibility of the court where the proceedings are pending to make a ruling on the venue issue. A trial court cannot transfer a proceeding based upon improper venue in advance of making an improper venue determination. It is error for a trial court to transfer the decision to make a venue determination to another County’s circuit court.
A plaintiffs choice of venue is presumptively correct, and the burden is upon the party seeking a change of venue to demonstrate the impropriety of the plaintiffs selection. See Houchins v. Florida East Coast Ry. Co., 388 So. 2d 1287 (Fla. 3d DCA 1980). Even where venue is proper in more than one county, it is the plaintiffs right to select which county in which to pursue his or her cause of action. See Bracken v. Bracken, 795 So. 2d 225 (Fla. 4th DCA 2001); Reed v. Reed, 720 So. 2d 582 (Fla. 1st DCA 1998). Thus if proceedings are filed in a county where venue is appropriate, such as in this case, it is improper for a court to thereafter transfer venue to another county where venue would also have been proper, based upon that reason alone. See Graham v. Graham, 648 So. 2d 814 (Fla. 4th DCA 1995); Washington v. Washington, 613 So. 2d 594 (Fla. 5th DCA 1993).
Here, once the court found that venue was proper in Miami-Dade County, it should have denied the former husband’s motion to transfer venue, and allowed the case to remain in Dade County. See Bracken v. Bracken, 795 So. 2d at 225; Washington v. Washington, 613 So. 2d at 594. Accordingly, we reverse the order below with directions that the modification case is to remain in Miami-Dade County.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Israel v. Israel, 874 So. 2d 690 (Fla. 4th DCA 2004)…ormer husband’s modification motion, which he did not appeal. We reverse the injunction entered against the former husband. It is the “responsibility of the court where the proceedings are pending” to rule on the propriety of venue. Foti v. Camejo, 812 So. 2d 507, 508 (Fla. 3d DCA 2002). Case law demonstrates that the proper procedure for dealing with a venue dispute in a post-dissolution modification proceeding is to file a motion to transfer in the court where the petition has been filed. See Mingione v. M…
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Diosmary Ozuna v. Jabaal Sheard, 109 So. 3d 1176 (Fla. 3d DCA 2013)…ni, Inc. v. Roberts, 745 So. 2d 482, 483 (Fla. 1st DCA 1999). The venue a party chooses is presumptively correct, and the burden lies on the party who seeks a change of venue to demonstrate the impropriety of the venue selection. See Foti v. Camejo, 812 So. 2d 507, 508 (Fla. 3d DCA 2002). Miami-Dade County is a proper venue for the mother’s petition where, as here, Miami-Dade County had continuing jurisdiction to modify the amount of child support. Section 61.14(a), Florida Statutes (2012), specifically perm…
Authorities Cited
- Coleman P. Houchins, Jr. v. Fla. E. Coast Ry. Co., 388 So. 2d 1287 (Fla. 3d DCA 1980)
- Graham v. Graham, 648 So. 2d 814 (Fla. 4th DCA 1995)
- Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995)
- Washington v. Washington, 613 So. 2d 594 (Fla. 5th DCA 1993)
- Bagley v. Bagley, 720 So. 2d 582 (Fla. 4th DCA 1998)
- Roberts v. State, 795 So. 2d 225 (Fla. 3d DCA 2001)
- Bracken v. Reid Bracken, 795 So. 2d 225 (Fla. 4th DCA 2001)