ROGER RICHARD HOLLOWELL, APPELLANT,
v.
KRISTEN JENNIFER TAMBURRO, APPELLEE

Fla. 4th DCA | 2008-10-08
No. 4D08-2429
SHAHOOD, C.J., concurs., FARMER, J., concurs in result only.
991 So. 2d 1022 Florida District Court of Appeal, Fourth District (2008) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this family law appeal, a Colorado father challenges Florida's personal jurisdiction to determine child support and other monetary issues under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The court reversed the trial court's denial of the father's motion to dismiss, holding that a non-resident father may participate in custody proceedings without waiving his jurisdictional objection to financial matters.


Holding

The court held that the mother's complaint failed to allege sufficient jurisdictional facts under Florida's long-arm statute, and the father lacked minimum contacts with Florida to satisfy due process requirements. The father's participation in custody proceedings under UCCJEA section 61.510(1) does not constitute a waiver of his jurisdictional objection to financial matters, and the father's motion to dismiss for lack of personal jurisdiction should have been granted.


Headnotes

[1] A Florida court lacks personal jurisdiction over a non-resident father for matters other than child custody and visitation under the Uniform Child Custody Jurisdiction an…

[2] A complaint must allege specific jurisdictional facts, such as prior residency in the state or the act of sexual intercourse within the state leading to conception, to es…

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Key Quotes

“A 'child custody determination' under section 61.503(3), Florida Statutes (2008), is an order providing for, among other things, the 'physical custody' and 'visitation with respect to a child'; that 'term does not include an order relating to child support or other monetary obligation of an individual.'”

Establishes the critical distinction between custody determinations (over which Florida has UCCJEA jurisdiction) and monetary obligations (over which Florida lacks personal jurisdiction in this case).

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Facts & Procedural History

The father has resided and worked in Colorado for 32 years as a ranch manager. He had three children with the mother, who lived in Colorado until May …

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Opinion of the Court
GROSS, J.

GROSS, J.

The father challenges the personal jurisdiction of a Florida court to determine matters other than child custody and visitation under the Uniform Child Custody Jurisdiction and Enforcement Act (“UC-CJEA”), sections 61.501-61.542, Florida Statutes (2007). We reverse the order denying the father’s motion to dismiss for lack of personal jurisdiction.

The father has lived in Aspen, Colorado for 32 years where he works as a manager for a 1,000-acre ranch. The father met the mother in 1997; they had three children together, but never married. The two oldest children were born in 2003 and 2005. They youngest child was born on August 24, 2007. The mother and the two older children primarily lived in Colorado until May, 2007, when they moved to Florida. In June, 2007, the mother filed a declaration of domicile in Martin County, Florida.

In October, 2007, the mother returned to Colorado to allow the father to visit with the children. The father filed a petition in Colorado to determine parental responsibilities and secured a restraining order to prevent the mother from leaving Colorado with the children. The restraining order was lifted, and the mother and children returned to Florida in November, 2007. In December, the Colorado court dismissed the father’s petition, ruling that under the UCCJEA, Florida was the home state of the three children. On December 10, 2007, the Mother filed a petition to determine paternity which also sought child support, a determination of parental responsibility, attorney’s fees, and other relief in the Florida court. The father was served in Colorado.

The father retained Scott Alan Sa-lomon to represent him. Salomon filed a notice of appearance on February 15, 2008 and stipulated to an agreed order giving the father time to answer the petition. Later, the father terminated Salomon1 and hired his current lawyer, Matthew S. Nugent.

On March 14, 2008, the father filed his motion to dismiss for lack of personal jurisdiction supported by an affidavit establishing his Colorado residency and his absence of contacts with Florida. He filed a notice of mediation on March 31 and the court referred the case to family mediation on April 11, 2008. On April 10 the father moved for temporary custody and visitation with the children.

During May, 2008, the father moved for a protective order against discovery orders entered by the circuit court. The court heard the motion to dismiss on May 28 and denied the motion on June 3 determining that the father’s participation in the proceedings had amounted to a waiver of his right to contest personal jurisdiction.

In Venetian Salami Co. v. Parthenais, the Supreme Court of Florida set forth a two-prong test to determine whether long-arm jurisdiction is proper under the long-arm statute, section 48.193, Florida Statutes (2007):

In determining whether long-arm jurisdiction is appropriate in a given ease, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements.

554 So. 2d 499, 502 (Fla.1989), (quoting Unger v. Publisher Entry Serv., Inc., 513 So. 2d 674, 675 (Fla. 5th DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988)).

Under the first prong of Venetian Salami, the mother’s complaint failed to allege sufficient facts to bring the case within the long-arm statute. This failure requires that the father’s motion to dismiss be granted. See Fishman, Inc. v. Fishman, 657 So. 2d 44, 45 (Fla. 4th DCA 1995); Morgan v. Morgan, 679 So. 2d 342, 346 (Fla. 2d DCA 1996); Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985).

Subsections 48.193(l)(e) and (h) arguably apply to this case. The crucial facts that must be pleaded under section 48.193(l)(e) to sustain an “independent action for support of dependents,” require a showing that the defendant “resided in this state preceding the commencement of the action, whether cohabiting during that time or not.” Under section 48.193(l)(h), relating to paternity actions, the central jurisdictional fact that must be alleged is that the defendant engaged “in the act of sexual intercourse within this state with respect to which a child may have been conceived.” The mother’s complaint pleaded none of these facts to establish a jurisdictional basis under the long-arm statute.

As to the second prong of Venetian Salami, the father does not have minimum contacts with Florida sufficient to satisfy due process requirements. He was born and raised in Colorado and has lived and worked there his entire life. He has never owned any real estate in Florida. He has never resided in Florida.

To counter the father’s arguments under Venetian Salami, the mother argues that the father’s conduct in the litigation amounted to a waiver of his objection to personal jurisdiction. However, the father’s actions were primarily defensive, consistent with his right to participate in this proceeding under the UCCJEA without waiving an objection to personal jurisdiction on the issues of child support or other monetary obligations.

A “child custody determination” under section 61.503(3), Florida Statutes (2008), is an order providing for, among other things, the “physical custody” and “visitation with respect to a child”; that “term does not include an order relating to child support or other monetary obligation of an individual.” Section 61.510(1), Florida Statutes (2008), allows a party to make a limited appearance for a “child custody determination,” without subjecting himself to jurisdiction on matters beyond the child custody determination. Section 61.510(1), Florida Statutes (2008) provides:

A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

The father concedes that the circuit court has subject matter jurisdiction to address the issues of custody and visitation, that the court may make a “child custody determination” under the UC-CJEA. Under section 61.510(1), the father has the right to participate in the proceedings concerning those issues without waiving his objection to personal jurisdiction over financial issues. See Fox v. Webb, 495 So. 2d 879 (Fla. 5th DCA 1986)(where court observed that that jurisdiction over a “custody determination” under the Uniform Child Custody Jurisdiction Act did not confer personal jurisdiction over a non-resident to alter support payments created by another state’s decree). Colorado has personal and subject matter jurisdiction to establish child support and enforce a support order against the father. See In the Interest of A.K., 72 P. 3d 402 (Colo.Ct.App.2003). The earlier Colorado ruling did not address financial issues regarding the children.

The mother contends that the father’s admission of paternity in pleadings he filed in this action amounted to a waiver of his objection to personal jurisdiction under Babcock v. Whatmore, 707 So. 2d 702 (Fla.1998). In Babcock, the supreme court held that a defendant “waives a challenge to personal jurisdiction by seeking affirmative relief,” because “such requests are logically inconsistent with an initial defense of lack of jurisdiction.” Id. at 704. In that case, in 1995, a former wife filed an action on a judgment seeking to obtain a single final judgment consolidating two earlier judgments, entered in 1977 and 1980 respectively. Id. at 703. The former husband responded to the lawsuit by moving to dismiss for lack of personal jurisdiction and by filing a motion to have the 1977 and 1980 judgments declared void, under Florida Rule of Civil Procedure 1.540(b). Id. The supreme court held that the rule 1.540(b) motion did not waive his objection to personal jurisdiction, since the motion “was not a plea for affirmative relief but rather was a defensive motion seeking to avoid the judgments.” Id. at 705.

The father’s conduct in this case was similar to the rule 1.540(b) motion in Bab-cock. The father availed himself of the limited appearance allowed by section 61.510(1). He sought no relief beyond a “child custody determination” under the UCCJEA and otherwise preserved his objection to the court’s personal jurisdiction over him.

We reverse the order denying the father’s motion to dismiss for lack of personal jurisdiction and remand to the circuit court to determine issues relating to child custody and visitation under the UCCJEA. SHAHOOD, C.J., concurs.

FARMER, J., concurs in result only.

. The father says that Salomon refused to communicate with him. The replacement attorney, Matthew Nugent, contends that Salo-mon refused to cooperate with him in the substitution of counsel. We note that Salo-mon was suspended from the practice of law on June 27, 2008. See Supreme Court Case No. SC08-1195 at The Florida Bar v. Salomon, No. SC08-1195, 2008 WL 2579909 (2008), http://jweb.flcourts.org/pls/docket/ds_ docket. It also appears that Salomon was arrested on charges of organized fraud on September 11, 2008. See Sofia Santana, Suspended Attorney Scott A. Salomon, of Coral Springs, charged with organized fraud: He is accused of defrauding over 30 clients, South Florida Sun-Sentinel Com, Sept. 11, 2008, http://www.Sun-sentinel.com/newsAocaI/ broward/sfl-flbattorney091 sbsep 11, 0,2598790.story. We reject the mother’s arguments that Salomon's conduct should result in a waiver of jurisdictional objections or in the striking of pleadings filed by Nugent.


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    …oof Depot regarding vacating the judgment. . Similarly, the filing of a rule 1.540(b) motion to vacate judgment does not waive a claim of lack of personal jurisdiction. See Babcock v. Whatmore, 707 So. 2d 702, 705 (Fla.1998); Hollowell v. Tamburro, 991 So. 2d 1022, 1025-26 (Fla. 4th DCA 2008).…
  • Oken v. Williams, 23 So. 3d 140 (Fla. 1st DCA 2009)
    …2d DCA 2008) (Altenbemd, X, concurring) (citing the Florida Department of Corrections website’s estimate of approximately $50 a day to house, feed, clothe, educate, and provide medical expenses to an inmate at a major prison); Hollowell v. Tamburro, 991 So. 2d 1022, 1024 n. 1 (Fla. 4th DCA 2008) (citing news article explaining local attorney was arrested on charges of fraud to explain delay in parties’ actions). To demonstrate how well accepted internet citation has become, numerous cases have utilized intern…
  • Empire Beauty Salon v. Commercial Loan Solutions IV, LLC, 159 So. 3d 136 (Fla. 5th DCA 2014)
    …elief’ has been defined as “relief sought by a defendant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiffs action.” Black’s Law Dictionary 1482 (10th ed. 2014); see, e.g., Hollowell v. Tamburro, 991 So. 2d 1022 (Fla. 4th DCA 2008) (reversing order denying father’s motion to dismiss for lack of personal jurisdiction even though the father subsequently filed a notice of mediation and the case was referred to family mediation). Because Salon Dominicano did no…

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