ANNE VITALE, APPELLANT,
v.
ALEXANDER F. VITALE, APPELLEE
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Mother appeals a trial court's order transferring venue in a child custody modification proceeding from Broward County to Collier County. The appellate court reversed, holding that venue transfer to Collier County was improper because the forum non conveniens statute only permits transfers to venues already authorized by the child custody modification statute, and Collier County was not an authorized venue under that statute.
The court held that venue is improper in Collier County and the trial court erred in transferring venue there. The forum non conveniens statute only permits transfers to venues already authorized by the applicable venue statute, and because Collier County does not qualify as a venue authorized under section 61.13(2)(c), the transfer was improper.
[1] In child custody modification proceedings, venue may be laid where either parent resides with the child or where the final judgment was rendered.
[2] A change of venue under the forum non conveniens statute is permissible only to a court in which the action might have been initially brought.
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Join FLexlaw to unlock all legal intelligence“The question is therefore whether father might initially have brought the modification proceeding in Collier County. Under section 61.13(2)(c), the modification proceedings could have been brought only in one of two places — namely in North Carolina where mother resides with the children or in Broward County where the final judgment was entered.”
Establishes the statutory test for determining authorized venues in child custody modification proceedings
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Join FLexlaw to unlock all legal intelligenceMother and father's marriage was dissolved in Broward County, with mother designated as primary residential parent of their two minor children in Brow…
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FARMER, J.
Mother appeals an order transferring venue from Broward County to Collier County in a child custody modification proceeding. We reverse.
Mother and father’s marriage was dissolved by final judgment in Broward County. The judgment approved an agreement that mother would be the primary residential parent of their two minor children in Broward County. Mother later relocated with the children to North Carolina. Father relocated to Collier County.
Father initiated proceedings in Broward County to modify the final judgment as to custody and visitation. He then filed a motion to transfer venue to Collier County on the basis that Broward County was no longer a convenient forum. He argued that neither of the parties lived in Broward County any longer, that his potential witnesses lived in Collier County, that Collier County was more convenient. After a hearing, the trial court granted the motion, finding that Broward was not a convenient forum because the parties had not lived in Broward for several years.
The applicable venue statute provides that in modification of child custody proceedings, venue may be laid where either parent resides with the child or where the final judgment was rendered. § 61.13(2)(c), Fla. Stat. (2008). The statute also authorizes a change of venue under Florida’s forum non conveniens (FNC) statute. § 47.122, Fla. Stat. (2008). The FNC statute permits a trial court to transfer an action on specified grounds but only to a court “in which it might have been brought”. § 47.122, Fla. Stat. (2008).
The question is therefore whether father might initially have brought the modification proceeding in Collier County. Under section 61.13(2)(c), the modification proceedings could have been brought only in one of two places — namely in North Carolina where mother resides with the children or in Broward County where the final judgment was entered. Neither parent has ever resided with the children in Collier County. Nor is Collier County the place where the final judgment awarding custody was entered. Collier County does not qualify as either of the two places authorized by section 61.13(2)(c).
Ordinarily we review orders transferring venue under the FNC statute for abuse of discretion. Stanek-Cousins v. State, 912 So. 2d 43 (Fla. 4th DCA 2005); D.M. v. J.D.M. ex rel. C.F., 814 So. 2d 1112 (Fla. 4th DCA 2002). But discretion under the FNC statute is not open-ended. Transfers under the FNC statute are permitted only to venues authorized by the venue statutes. It is legal error and thus fundamentally an abuse of discretion to choose an alternative not permitted by statute.
Accordingly venue is improper in Collier County. The trial court should have denied the request under the FNC statute to transfer venue.
Reversed.
GROSS and DAMOORGIAN, JJ., concur.
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Ford Motor Co. v. James, 33 So. 3d 91 (Fla. 4th DCA 2010)…ence to which James’ choice of forum was entitled and denied the motions to transfer venue. A trial court’s denial of a motion to transfer venue pursuant to section 47.122, Florida Statutes, is reviewed for an abuse of discretion. Vitale v. Vitale, 994 So. 2d 1242, 1243 (Fla. 4th DCA 2008). Section 47.122 provides: For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.…
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Kahlifi McGEE v. McGEE, 145 So. 3d 955 (Fla. 1st DCA 2014)…(codifying Kinney). The limitation of the transfer to “any other court of record in which it might have been brought” in section 47.122, means that any transfer is limited to a county that would have been a proper venue initially. Vitale v. Vitale, 994 So. 2d 1242 (Fla. 4th DCA 2008); Tindall v. Smith, 601 So. 2d 627 (Fla. 2d DCA 1992). A court cannot transfer venue for the convenience of the parties or witnesses, or in the interests of justice, to a forum that would not have been appropriate for the filing o…
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Cohen v. Scarnato, 270 So. 3d 410 (Fla. 4th DCA 2019)…14 So. 3d 1025, 1027 (Fla. 4th DCA 2009). Even after this showing is made, a court may transfer venue only to a court where the action could have been filed initially. See McGee v. McGee, 145 So. 3d 955, 958 (Fla. 1st DCA 2014); Vitale v. Vitale, 994 So. 2d 1242, 1243 (Fla. 4th DCA 2008). We generally review an order transferring venue under section 47.122 for an abuse of discretion. See Vitale, 994 So. 2d at 1243; Weinberg v. Weinberg, 936 So. 2d 707, 708 (Fla. 4th DCA 2006). But “where there are no dis…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- D.M. v. J.D.M, 814 So. 2d 1112 (Fla. 4th DCA 2002)
- Stanek-Cousins v. State, 912 So. 2d 43 (Fla. 4th DCA 2005)