JESSICA RESOR, APPELLANT,
v.
CHRIS WELLING, APPELLEE
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Appellant challenged a trial court's order transferring venue of a child custody modification petition from Seminole County to Collier County. The appellate court reversed, holding that where venue is proper in multiple counties under Florida law, the petitioner has the right to select one, and transfer requires a showing of substantial inconvenience or undue expense, which was not made here.
The court reversed the transfer order, holding that when venue is proper in multiple counties under section 61.13(2)(d), Florida Statutes, the petitioner has the right to select one of the appropriate counties. Transfer to another proper venue is improper unless the party seeking transfer demonstrates substantial inconvenience or undue expense under section 47.122, Florida Statutes, which Appellee failed to do.
[1] A circuit court may modify a parenting plan in the county where either parent and the child reside, or in the county where the original order approving or creating the pa…
[2] When venue is proper in multiple counties for a parenting plan modification, the petitioner has the right to select one of the appropriate counties.
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Join FLexlaw to unlock all legal intelligence“Where venue is proper in more than one county, the petitioner has the right to select one of the appropriate counties and it is improper to transfer the action to another venue solely because venue is appropriate there as well.”
Establishes the core principle that when multiple proper venues exist, the petitioner's choice is protected from transfer absent showing of inconvenience.
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Join FLexlaw to unlock all legal intelligenceIn September 2007, Collier County Circuit Court entered a Final Judgment of Paternity requiring Appellant to obtain approval before relocating further…
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Appellant challenges an order that transferred venue of her supplemental petition to modify a child custody order. Because venue was proper where Appellant filed the petition and no showing was made that another proper venue was more convenient, we reverse.
*657In September 2007, the Collier County-Circuit Court entered a Final Judgment of Paternity and Related Relief based upon an agreement between Appellant and Ap-pellee concerning their minor child. It acknowledged that Appellant had relocated from Naples to Orlando, but ordered her not to relocate further north without prior written approval from Appellee or by order of the court.
In January 2009, Appellant filed the instant petition to relocate in the Seminole County Circuit Court, stating that she and the minor child had lived in Seminole County since August 2007. She requested a modification of the final judgment to allow her to move to Valdosta, Georgia with the minor child. Appellee moved to transfer venue to Collier County, asserting that venue in Seminole County was not proper. After hearing arguments, the court granted Appellee’s motion. It concluded that while venue was proper in either county, venue in Collier County was “more proper” because “of the prior order, [and] also because that’s where [Appel-lee]’s going to be. That’s where the case should have been filed.”
On appeal, Appellant asserts that venue was proper in Seminole County and that no showing was made to support transfer based on the convenience of the parties. We agree. Section 61.13(2)(d), Florida Statutes (2009), authorizes two potential venues: “The circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered may modify the parenting plan.... ” Where venue is proper in more than one county, the petitioner has the right to select one of the appropriate counties and it is improper to transfer the action to another venue solely because venue is appropriate there as well. Guntner v. Jennings, 980 So.2d 1185, 1187 (Fla. 5th DCA 2008). Rather, section 61.13(2)(d) provides that the court may change the venue in accordance with section 47.122, Florida Statutes. That section allows a trial court to transfer an action to any other court in which it could have originally been brought for the convenience of the parties or witnesses, or in the interest of justice. § 47.122, Fla. Stat. (2009). The party seeking the transfer bears the burden of showing substantial inconvenience or undue expense to establish a basis for the transfer. Vero v. Vero, 659 So.2d 1348, 1349 (Fla. 5th DCA 1995).
Here, Appellee did not file affidavits or offer evidence to meet his burden. Instead, counsel made a woefully insufficient assertion that “any witnesses that [Appel-lee] might call are located in Collier County.”
REVERSED and REMANDED.
GRIFFIN, ORFINGER and TORPY, JJ., concur.
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Brown v. Nagelhout, 84 So. 3d 304 (Fla. 2012)…other court of record in which it might have been brought.” “The party seeking the transfer [pursuant to section 47.122] bears the burden of showing substantial inconvenience or undue expense to establish a basis for the transfer.” Resor v. Welling, 44 So. 3d 656, 657 (Fla. 5th DCA 2010). The instant record, however, does not contain and the trial court did not consider any evidence regarding the competing conveniences of the parties, the location, number, or availability of the witnesses, or any other facto…
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Mann v. Yeatts, 111 So. 3d 934 (Fla. 5th DCA 2013)…. Appellee contends that the declaration by the Social Security Administration does not give rise to a change of circumstances and is irrelevant and inadmissible hearsay evidence. We need not address these points in this appeal. . Resor v. Welling, 44 So. 3d 656 (Fla. 5th DCA 2010). . We may consider lack of preservation as a basis to affirm even in the absence of a specific argument on that point by Appellee. Food Lion, L.L.C. v. Henderson, 895 So. 2d 1207 (Fla. 5th DCA 2005). . The trial court also dete…
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AHG TAX Credit Fund Xviii, LLC v. Blitchton Station, Ltd., 200 So. 3d 117 (Fla. 5th DCA 2016)…f justice.”. Where, as here, venue is proper in more than one county, a plaintiffs choice of venue will not be set aside without a showing of substantial inconvenience to the parties or witnesses, or that justice requires transfer. Resor v. Welling, 44 So. 3d 656, 657 (Fla. 5th DCA 2010). The party seeking transfer carries the burden of establishing that the transfer is required. See Hall v. Animals.com, LLC, 171 So. 3d 216, 218 (Fla. 5th DCA 2015) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995)
- Guntner v. Shana Perry Jennings, 980 So. 2d 1185 (Fla. 5th DCA 2008)