JOHN GREY PERIOLAT, APPELLANT,
v.
VELMA JOAN PERIOLAT, APPELLEE
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In this family law appeal, a Florida appellate court reversed a contempt order against a father who removed his child from Florida to Indiana without court authorization, but affirmed the trial court's temporary custody order awarding the child to the mother. The court held that while personal jurisdiction over the father was lacking for the contempt finding, the trial court had subject matter jurisdiction over the custody matter based on the child's presence in Florida when the dissolution petition was filed.
The court lacked personal jurisdiction over the father, therefore the contempt order was reversed. However, the court had subject matter jurisdiction to enter the temporary custody order because the child was within the court's jurisdiction when the dissolution petition was filed.
[1] A contempt order is void if the court lacks personal jurisdiction over the respondent.
[2] A court has jurisdiction to enter a temporary custody order if the child is within the court's jurisdiction at the time the complaint is filed and the complaint alleges s…
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Join FLexlaw to unlock all legal intelligence“Counsel for both parties stipulated in open court that the record on appeal does not show that personal jurisdiction of the appellant was obtained. We agree and, as a consequence, the contempt order is hereby set aside.”
Establishes the court's holding that lack of personal jurisdiction requires reversal of the contempt order.
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Join FLexlaw to unlock all legal intelligenceThe mother, a Hillsborough County resident, filed for dissolution of marriage on February 4, 1975, seeking custody of their five-year-old son who was …
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PER CURIAM.
Appellant/husband contends that the trial court lacked jurisdiction to hold him in contempt and award temporary custody of the child to appellee/wife. We reverse the order of contempt and affirm the temporary order of custody.
Appellee, a resident of Hillsborough County, filed her petition for dissolution of marriage on February 4, 1975. She prayed for custody of their five year old son who was then living with her. On the same day, the court issued an order restraining the appellant from coming on the premises where the petitioner and their son resided in Tampa.
Appellant, a resident of Indiana, came to Florida on February 11, 1975, picked up the child, and took him back to Indiana. The record does not reflect that service of process was obtained on appellant.
On March 27, 1975, counsel for appellant filed a motion to dismiss for lack of personal jurisdiction over appellant, and also a motion to dissolve the temporary restraining order. Appellee then filed motions of her own which were heard on April 10, 1975. At this hearing, the court entered an order holding appellant in contempt for failure to appear with the minor child, and also awarding temporary custody of the child to appellee. This interlocutory appeal followed.
Counsel for both parties stipulated in open court that the record on appeal does not show that personal jurisdiction of the appellant was obtained. We agree1 and, as a consequence, the contempt order is hereby set aside. This holding is without prejudice to the appellee and she should be given the opportunity to prove, if she can, that the court had personal jurisdiction over the appellant.
However, the court did have jurisdiction to enter the order regarding custody, because the child was within the court’s jurisdiction when the complaint was filed and the complaint so alleged. Mirras v. Mirras, Fla.App.2d 1967, 202 So. 2d 887; Rich v. Rich, Fla.App.4th 1968, 214 So. 2d 777; Nieburger v. Nieburger, Fla.App.1st 1968, 214 So. 2d 382. Therefore, the trial judge’s order in respect to temporary custody is affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur. . Appellee contended in her brief that appellant waived his attack on personal jurisdiction by also filing a “pleading directed to the merits.” This contention is without merit. RCP 1.140(b); Robinson v. Loyola Foundation Inc., Fla.App. 1st 1970, 236 So. 2d 154; State v. Shields, Fla.1955, 83 So. 2d 271.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985)…l defense of lack of jurisdiction: Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984); Orange Motors v. Donnelley, 415 So. 2d 892 (Fla. 3d DCA 1982); Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla.1982); Periolat v. Periolat, 336 So. 2d 1256 (Fla. 2d DCA 1976); Green v. Roth, 192 So. 2d 537 (Fla. 2d DCA 1966). On the other hand, a request for affirmative relief has been held to waive the personal jurisdiction defense. Hubbard v. Cazares, 413 So. 2d 1192 (Fla. 2d D.C.A.1981). The Florida…
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White v. Maude F. Nicholson and P. N. Nicholson, 386 So. 2d 74 (Fla. 2d DCA 1980)…of jurisdiction over its persons has not submitted itself to the jurisdiction of this Court by filing a motion to discharge the lis pendens or affirmatively moving the Court to increase the injunctive bond. Id. at 539. Compare Periolat v. Periolat, 336 So. 2d 1256 (Fla. 2d DCA 1976) and Jones v. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972). This question is also indirectly addressed in 5 Am.Jur.2d Appearance, § 7 (1962) wherein it is stated: “A general appearance by the defendant, without previous objection to…
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Dimino v. Farina, 572 So. 2d 552 (Fla. 4th DCA 1990)…l defense of lack of jurisdiction: Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984); Orange Motors v. Donnelley, 415 So. 2d 892 (Fla. 3d DCA 1982); Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla.1982); Periolat v. Periolat, 336 So. 2d 1256 (Fla. 2d DCA 1976); Green v. Roth, 192 So. 2d [*555] 537 (Fla. 2d DCA 1966). On the other hand, a request for affirmative relief has been held to waive the personal jurisdiction defense. Hubbard v. Cazares, 413 So. 2d 1192 (Fla. 2d DCA 1981). The Fl…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. ELI Lilly & Co. v. Honorable Bayard B. Shields, 83 So. 2d 271 (Fla. 1955)
- Mirras v. Mirras, 202 So. 2d 887 (Fla. 2d DCA 1967)
- Robinson v. Loyola Found., Inc., 236 So. 2d 154 (Fla. 1st DCA 1970)
- Rich v. Rich, 214 So. 2d 777 (Fla. 4th DCA 1968)
- Nieburger v. Nieburger, 214 So. 2d 382 (Fla. 1st DCA 1968)