SUSAN HARDMAN, FORMER WIFE, APPELLANT,
v.
HARRY KOSLOWSKI, FORMER HUSBAND, APPELLEE
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The Florida appellate court held that a trial court lacks subject matter jurisdiction to enforce visitation orders concerning an adult child, even when the child is disabled, once the child reaches the age of majority. The court quashed the trial court's order requiring the former wife to facilitate visitation between the former husband and their disabled adult son.
The trial court lost subject matter jurisdiction to enforce visitation orders once Alexander reached the age of majority. While the court retains jurisdiction to order child support for Alexander due to his incapacity under Florida Statutes sections 61.13(1) and 743.07(2), no similar exception exists for visitation orders, which by statute apply only to minors.
[1] A trial court loses subject matter jurisdiction for purposes of custody and visitation under chapter 61, Florida Statutes, once a child reaches the age of majority, notwi…
[2] Subject matter jurisdiction is conferred upon a court by constitution or statute and cannot be created by waiver, acquiescence, or agreement of the parties.
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Establishes the fundamental principle that subject matter jurisdiction cannot be created or waived by the parties and is determined solely by law.
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Join FLexlaw to unlock all legal intelligenceHarry Koslowski (former husband) and Susan Hardman (former wife) were divorced and had a disabled adult son, Alexander Koslowski, who suffered from ac…
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This cause came before the trial court on the former husband’s Corrected Second Motion for Contempt Regarding Visitation, alleging the former wife was frustrating his attempts to visit the parties’ disabled adult son, Alexander Koslowski, contrary to the provisions of an order entered by the trial court on July 9, 2010.1 Alexander presently lives in the State of Washington with the former wife and his stepfather, who were appointed Alexander’s co-guardians in November 2009 by order of the Superior Court of the State of Washington in and for King County. The former husband resides in Jacksonville, Florida. Viewing the former husband’s motion as one for enforcement, the trial court ordered that the former husband could exercise visitation with Alexander in Jacksonville for one month, and directed former wife (a registered nurse) to accompany Alexander or, at her option, pay an airline representative or a nurse to do so.2 The former wife challenges the order primarily on the basis that the trial court lacks subject matter jurisdiction to address visitation because Alexander is no longer a minor. While the former wife also raises other points on appeal, we need not reach them. Instead, we hold the circuit court, Fourth Judicial Circuit in and for Duval County, Florida, lost subject matter jurisdiction under chapter 61, Florida Statutes (2004), for purposes of custody and visitation, once Alexander reached the age of majority, notwithstanding his disability.
Our decision to reach this point, despite past trial court orders assuming jurisdiction and appellate opinions silent on the matter,3 is mandated by principles *436so rudimentary to our system of jurisprudence as to be beyond debate. First, “[s]ubject matter jurisdiction — the ‘power of the trial court to deal with a class of cases to which a particular case belongs’— is conferred upon a court by constitution or by statute.” Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)). It “cannot be created by waiver, acquiescence, or agreement of the parties, or by error or inadvertence of the parties or their counsel, or by the exercise of power by the court; it is a power that arises solely by virtue of law.” Hoechst Celanese Corp. v. Fry, 693 So.2d 1003, 1006-07 (Fla. 3d DCA 1997) (quoting 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994)); Strommen, 927 So.2d at 179. Second, a lack of subject matter jurisdiction renders a judgment void, “and a void judgment can be attacked at any time, even collaterally.” Strommen, id. Accord, Edwards v. State, 128 So.3d 134, 136 (Fla. 1st DCA 2013); Holub v. Holub, 54 So.3d 585, 587 (Fla. 1st DCA 2011); Colucci v. Greenfield, 547 So.2d 224, 225 n. 1 (Fla. 3d DCA 1989). Third, an appellate court has an independent duty to recognize a jurisdictional defect even if not raised by either party. See 84 Lumber, 656 So.2d at 1299 (citing City of Gainesville v. Republic Inv. Corp., 480 So.2d 1344 (Fla. 1st DCA 1985)). Finally, “[a] judicial or quasi-judicial decision will not be given res judicata effect where rendered by a tribunal lacking subject matter jurisdiction.” Fla. Export Tobacco Co. v. Dep’t of Revenue, 510 So.2d 936, 943 (Fla. 1st DCA 1987) (citing Fla. Nat’l Bank v. Kassewitz, 156 Fla. 761, 25 So.2d 271 (1946)); see also 84 Lumber, 656 So.2d at 1299 (holding a trial court’s order rendered without jurisdiction “is not entitled to the preclusive effect of res judi-cata,” citing Kassewitz).
In the present case, the trial court had the power to order visitation with Alexander only while he was a minor. See § 61.13(2), Fla. Stat. (2004). The trial court could not exercise that jurisdiction once Alexander reached majority. See Poliak v. Poliak, 235 So.2d 512, 514 (Fla. 2d DCA 1970) (holding the law of Florida “is well settled” that a circuit court retains continuing exclusive jurisdiction to modify its custody orders, including visitation privileges, until such time as the minor children reach their majority). The trial court does, however, have continuing jurisdiction under sections 61.13(1) and 743.07(2), Florida Statutes (2012), to order support for Alexander, despite his having reached adulthood, because of his mental and physical incapacity.4 No similar exception exists, though, continuing the trial court’s jurisdiction to enter orders concerning visitation. Indeed, even for the general purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, the term “child” is defined as meaning “an individual who has not attained 18 years of age.” See § 61.503(2), Fla. Stat. (2004). Furthermore, we consider it worthy to emphasize that under the guardian*437ship order entered by the State of Washington, Alexander was found not to be incompetent in the area of making decisions regarding his social relationships, including (as added and initialed by both parties), “supervised visitation with [his] father.”
In conclusion, because the trial court lacked subject matter jurisdiction to enforce the July 9, 2010, order, the order on appeal is void and, for that reason, is hereby quashed.
BENTON, SWANSON, and OSTERHAUS, JJ., concur.
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Kennan G. Dandar & Dandar & Dandar, P.A. v. Church of Scientology Flag Serv. Org., Inc., 190 So. 3d 1100 (Fla. 2d DCA 2016)…out merit.” Id. This disposition is procedural and not a substantive determination on the merits. Therefore, this panel may reach the issue of jurisdiction in this appeal. We find support for this conclusion in a Similar case, Hardman v. Koslowski, 135 So. 3d 434 (Fla. 1st DCA 2014). Addressing the law of the casé doctrine, the court' stated: The doctrine of law of the case is a doctrine of’ judicial estoppel “limited to questions of law actually presented and considered on a former appeal.” Fla. Dep’t of T…
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Logreira v. Efrain Logreira, 322 So. 3d 155 (Fla. 3d DCA 2022)…y of this appeal. Consequently, the family court no longer has jurisdiction over him, rendering the portion of the challenged order requiring him to participate moot. See Ford v. Ford, 153 So. 3d 315, 317 (Fla. 4th DCA 2014); Hardman v. Koslowski, 135 So. 3d 434, 436 (Fla. 1st DCA 2014); see also § 61.13(2), Fla. Stat. (2022); § 61.503(2), Fla. Stat. (2022). We reverse the remaining provisions of the order because the father failed to present competent, substantial evidence that participation in the progra…
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Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Fla. Dep't OF Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001)
- Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179 (Fla. 1994)
- Keitel v. Keitel, 716 So. 2d 842 (Fla. 4th DCA 1998)
- 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994)
- Fla. Exp. Tobacco Co., Inc. v. Dep't OF Revenue & Gerald Lewis, 510 So. 2d 936 (Fla. 1st DCA 1987)
- Strommen v. Strommen, 927 So. 2d 176 (Fla. 2d DCA 2006)
- THE Fla. Nat'l Bank OF Jacksonville v. Kassewitz, 156 Fla. 761 (Fla. 1945)
- Hoechst Celanese Corp. v. FRY, 693 So. 2d 1003 (Fla. 3d DCA 1997)
- Colucci v. Greenfield, 547 So. 2d 224 (Fla. 3d DCA 1989)
- Poliak v. Poliak, 235 So. 2d 512 (Fla. 2d DCA 1970)