HONORABLE CLYDE B. WELLS, CIRCUIT JUDGE OF THE FIRST JUDICIAL CIRCUIT IN AND FOR WALTON COUNTY, FLORIDA, ET AL., PETITIONERS,
v.
PHYLLIS C. MCLEOD WARD, RESPONDENT
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The Florida Supreme Court held that a circuit court lacks jurisdiction to modify a divorce decree regarding custody and visitation when that decree was issued by another county's court. The court affirmed the District Court of Appeal's issuance of a writ of prohibition preventing the Walton County Circuit Court from hearing a modification petition that should have remained with the Escambia County court of original jurisdiction.
Continuing jurisdiction to modify custodial decrees remains with the court making the original determination. A different county's circuit court lacks jurisdiction to hear such modification petitions, and a writ of prohibition is an appropriate remedy to prevent such unauthorized jurisdiction.
[1] Continuing jurisdiction to modify child custody decrees remains with the court that made the original determination.
[2] A court of original jurisdiction retains jurisdiction to modify child custody decrees, absent specific statutory provisions for transfer of jurisdiction.
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Join FLexlaw to unlock all legal intelligence“It is clear that case law supports the proposition that continuing jurisdiction to modify custodial decrees remains with the Court making such original determination.”
States the core legal principle establishing which court retains jurisdiction over modification of custody decrees.
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Join FLexlaw to unlock all legal intelligenceIn 1969, Phyllis C. McLeod obtained a divorce in Escambia County, Florida, with custody of the minor child awarded to her and reasonable visitation ri…
The full statement of facts, procedural history, and disposition for this case are member content.
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MORPHONIOS, Circuit Judge.
This is a Petition for Writ of Certiorari, to the District Court of Appeal, First District, alleging conflict with a prior decision of this Court and seeking review of an order by the District Court of Appeal, First District, issuing a rule absolute in prohibition, which decision purportedly conflicts with Danson v. Danson, 76 Fla. 449, 80 So. 62 (1918).
Factually, we find that in 1969, Phyllis C. McLeod obtained in Escambia County, Florida, a divorce from George A. McLeod. In that divorce decree custody of the minor child of the parties was awarded to Phyllis C. McLeod with right of reasonable visitation to George A. McLeod. Thereafter, in Walton County, Florida, George A. McLeod filed a Petition for Modification of that divorce decree with regard to visitation rights. Upon denial of her motion to dismiss, respondent Phyllis C. McLeod Ward filed a suggestion for Writ of Prohibition on the grounds that the Circuit Court of Walton County lacked jurisdiction, the proper jurisdiction lying in the court of original jurisdiction, Es-cambia County, Florida.
Petitioner cites the case of Danson v. Danson, 76 Fla. 449, 80 So. 62 (1918), which was a proceeding in habeas corpus and, therefore, distinguishable from the case of sub judice. In addition, numerous factual distinctions exist.
However, in the case of Haley v. Edwards, 233 So. 2d 647 (Fla.App. 4th, 1970), the District Court of Appeal, Fourth District, faced a factual situation remarkably similar in issuing its writ of prohibition to the Circuit Court of Sarasota County. See also Poliak v. Poliak, 235 So. 2d 512 (Fla.App.2d, 1970); Jones v. State ex rel. Greathouse, 241 So. 2d 432 (Fla.App. 1st, 1970); Frye v. Frye, 205 So. 2d 310 (Fla.App. 4th, 1967).
It is clear that case law supports the proposition that continuing jurisdiction to modify custodial decrees remains with the Court making such original determination. There is ample provision for transfer of venue upon motion when justice would so indicate.
Florida Statutes, Chapter 39, dealing with juvenile dependency and delinquency, and Florida Statutes, Chapter 61, dealing with child custody and visitation, specifically enumerate those instances in which the county in which the child is located determines jurisdiction and this ruling does not relate to those matters. We hold, therefore, that the District Court of Appeal was correct in issuing its writ of prohibition and, accordingly, the writ of certiorari is discharged.
ADKINS, C. J., ROBERTS, J., and ALDERMAN, Circuit Judge, concur. ENGLAND, J., concurs specially with opinion.
ENGLAND,. Justice
(concurring specially).
If, as the majority opinion states, there is no conflict between this case and Dan-son, 'then we lack jurisdiction to hold that the district court was correct in issuing its writ of prohibition. The Constitution does not grant us authority to issue advisory opinions, other than those requested by the governor.1
I disagree, however, as regards conflict with Danson. In that case this Court ruled that a court in one county has jurisdiction to modify a custody award originally entered in another county. The district court in this case has ruled directly to the contrary, and the direct conflict between those decisions is precisely why we were given reviewing authority.2 The procedural differences between the cases should not prevent the exercise of our duty.
I would grant certiorari, affirm the district court for the reasons best expressed in J ones v. State ex rel. Greathouse, note 2 supra, and expressly recede from the rule of law adopted in Danson.
. Fla.Const. Art. IV, § 1(c).
. Fla.Const. Art. V, § 3(b)(3). The majority references Jones v. State ex rel. Greathouse, 241 So. 2d 432 (1st Dist.Ct.App.Fla. 1970), which itself cited and disapproved the result in Danson.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Nelson v. Nelson, 433 So. 2d 1015 (Fla. 3d DCA 1983)…o. 2d 406 (Fla.1977); Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971). Because no other court had dealt with the custody status of the children, the proper forum to litigate custody was the court that entered the original decree. See Wells v. Ward, 314 So. 2d 138 (Fla.1975); Bohn v. Rhoades, 121 So. 2d 777 (Fla.1960); Marshall v. Marshall, 404 So. 2d 1182 (Fla. 2d DCA 1981); Bailey v. Malone, 389 So. 2d 348 (Fla. 1st DCA 1980); Adams v. Adams, 374 So. 2d 29 (Fla. 3d DCA 1979); Elliott v. Weyman, 337 So. 2d 8…
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Bailey v. Malone, 389 So. 2d 348 (Fla. 1st DCA 1980)…ell established that the court which rendered the original judgment of dissolution, the Bradford County Circuit Court, has exclu [*350] sive jurisdiction of any petition seeking modification of child custody. Wells, in and for Walton County v. Ward, 314 So. 2d 138 (Fla.1975); Jones v. State ex rel. Greathouse, 241 So. 2d 432 (Fla. 1st DCA 1970). In addition, the Bradford Court has continuing jurisdiction for the enforcement of its decree. In this case, a proceeding to enforce the original judgment was pending…
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Williams v. The Honorable Hugh E. Starnes, 522 So. 2d 469 (Fla. 2d DCA 1988)…So. 2d 200 (Fla. 1st DCA 1970). The proper forum in which to determine or to modify a child custody award has heretofore been held to be a question of subject matter jurisdiction, not one of personal jurisdiction or even of venue. See Wells v. Ward, 314 So. 2d 138 (Fla.1975); Rhoades v. Bohn, 114 So. 2d 493 (Fla. 1st DCA 1959), aff'd, 121 So. 2d 777 (Fla.1960). But see Wells v. Ward, 298 So. 2d 493, 494 (Fla. 1st DCA 1974) (Boyer, J., specially concurring) (proper forum in which to determine child custody in…1 / 3
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Haley v. Hon. Claude R. Edwards, 233 So. 2d 647 (Fla. 4th DCA 1970)
- Poliak v. Poliak, 235 So. 2d 512 (Fla. 2d DCA 1970)
- Danson v. Danson, 76 Fla. 449 (Fla. 1918)
- Hooks v. Louie L. Wainwright, 241 So. 2d 432 (Fla. 2d DCA 1970)