HAROLD HARR, PETITIONER,
v.
ESTHER MARIETA LARA HARR, RESPONDENT
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Court denied writ of prohibition seeking to prevent circuit court from proceeding on counterpetition for dissolution of marriage, holding that factual disputes regarding the effect of voluntary dismissal must be resolved by the trial court before appellate review.
A writ of prohibition cannot be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction.
[1] A writ of prohibition is not available to challenge a trial court's jurisdiction when the jurisdictional question depends on disputed facts that must first be resolved by…
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Join FLexlaw to unlock all legal intelligenceHarold Harr filed a petition for dissolution of marriage, then served a notice of voluntary dismissal under Florida Rule of Civil Procedure 1.420(a)(1…
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VILLANTI, Judge.
The Petitioner, Harold Harr, seeks a writ of prohibition to prohibit the circuit court from proceeding on a counterpetition for dissolution of marriage filed by the Respondent, Esther Mariela Lara Harr. Mr. Harr claims that because he served a notice of voluntary dismissal of his petition for dissolution of marriage under Florida Rule of Civil Procedure 1.420(a)(1) before Mrs. Harr served her counterpetition, the circuit court acted without authority by taking any further action in the proceeding. Mr. Harr also asks this court to vacate any orders entered by the circuit court after the service of his notice of voluntary dismissal.
At a brief hearing on two unrelated motions filed by Mrs. Harr, the parties raised multiple legal and factual issues concerning whether Mr. Harr’s notice of voluntary dismissal effectively terminated the dissolution of marriage proceeding. The circuit court invited the parties to schedule a hearing with sufficient time to determine these issues. Instead of scheduling the hearing, Mr. Harr filed the petition that is before us. Mr. Harr’s claim that the circuit court is acting in excess of its jurisdiction cannot be resolved until the disputed issues of fact on which it depends are decided by the circuit court. Accordingly, we must deny the writ of prohibition. See Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla.1992) (“[P]rohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction.”).
Petition denied.
KELLY and WALLACE, JJ., Concur.
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Phillips v. Citibank, N.A., 63 So. 3d 21 (Fla. 2d DCA 2011)…n dismissed with finality. See 84 Lumber Co. v. Cooper, 656 So. 2d 1297, 1298 (Fla. 2d DCA 1994). And the appropriate means to challenge the trial court’s apparent usurpation of judicial power is a petition for writ of prohibition. See Harr v. Harr, 974 So. 2d 1094 (Fla. 2d DCA 2007); E. Cnty. Water Control Dist. v. Lee Cnty., 884 So. 2d 93 (Fla. 2d DCA 2004). However, we agree with the analysis of the respondent Chief Judge of the Sixth Judicial Circuit and determine as a matter of law that the lawsuit was ne…
Authorities Cited
- Mandico v. Taos Constr., Inc., 605 So. 2d 850 (Fla. 1992)