MICHAEL D. MCINTIRE, APPELLANT,
v.
LYNN O. MCINTIRE, APPELLEE
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In this Florida family law appeal, the First District Court of Appeal reversed the trial court's denial of the husband's motion to transfer venue in a foreign divorce decree enforcement action. The court held that proper venue lay in the husband's county of residence under Florida statute, and that the husband did not waive his venue defense by raising it alongside a counterclaim.
The court held that under Florida Statute 47.011, proper venue in an action to enforce a foreign divorce decree is in the county where the responding party resides (Leon County), not where payments were made; that the husband did not waive his venue defense by raising it in his answer alongside a counterclaim; and that a counterclaimant may dismiss his counterclaim without leave of court if the conditions of Florida Rule of Civil Procedure 1.420(a)(1) are met.
[1] Venue for an action to establish a foreign divorce decree is proper in the county where the responding party resides, pursuant to F.S. …
[2] A party does not waive the defense of improper venue by raising it as an affirmative defense in their answer along with a counterclaim.
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Join FLexlaw to unlock all legal intelligence“when a complaint to establish a foreign decree is brought, F.S. 47.011 controls and the action should be brought in the county where the responding party resides”
Establishes the governing statute and rule for venue in foreign divorce decree enforcement actions
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced in Georgia. The wife subsequently moved to Duval County, Florida, and the husband moved to Leon County, Florida. The wife fi…
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BOYER, Judge.
This is an interlocutory appeal by the husband (appellant herein) from an order denying his motion to transfer for improper venue.
The parties were divorced in Georgia and thereafter the wife moved to Duval County, Florida and the husband to Leon County, Florida. The wife filed a complaint in Du-val County seeking enforcement and establishment of a foreign divorce decree, and the husband answered raising improper venue as an affirmative defense under F.S. 47.011 and counterclaimed for establishment of the foreign decree. At the same time he filed a motion to transfer the action to Leon County pursuant to Fla.R.Civ.P. 1.060 and 1.140(d). At a hearing on the motion, the trial court found that absent a waiver by the husband, the proper venue was in Leon County per Ruscoe v. Ruscoe, 327 So. 2d 93 (Fla. 4th DCA 1976) and directed memoranda be filed on the waiver issue. Subsequently, the husband filed a notice of voluntary dismissal of his counterclaim pursuant to Fla.R.Civ.P. 1.420 and the wife filed a motion to strike the notice. The trial court entered an order denying the husband’s motion to transfer and granting the wife’s motion to strike the notice of voluntary dismissal.
The husband now urges that the trial court erred in denying his motion to transfer for improper venue and in granting the wife’s motion to strike the notice of voluntary dismissal of his counterclaim.
We agree with our sister court in Ruscoe, supra, that when a complaint to establish a foreign decree is brought, F.S. 47.011 controls and the action should be brought in the county where the responding party resides. In so holding, we reject the wife’s contention that the cause of action accrued in Duval County where the child support and alimony payments were made and that therefore venue was proper in that county.
The wife contends that the husband failed to follow Fla.R.Civ.P. 1.140(b) when he filed his motion to transfer alleging improper venue at the same time he filed his responsive pleading and that once he filed that motion he could not then plead to the merits and ask the trial court in Duval County to .take jurisdiction of an independent counterclaim since that constituted a clear waiver of his venue privilege.
Fla.R.Civ.P. 1.140(b) provides that a party may assert the defense of improper venue either in the form of a motion or he may assert it as an affirmative defense in his answer: Therefore it was proper for the husband to raise the defense of improper venue in his answer. In so doing, he did not waive the defense merely because he filed it with a counterclaim in a responsive pleading. Brennan v. Brennan, 192 So. 2d 782 (Fla. 3rd DCA 1966).
As to the husband’s second alleged error, we hold that a counterclaimant can dismiss his counterclaim without leave of court provided the conditions of Fla.R. Civ.P. 1.420(a)(1) are otherwise met. (See Fla.R.Civ.P. 1.420(c).)
REVERSED.
McCORD, C. J., and MELVIN, J., concur.
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Carr v. Carr, 464 So. 2d 221 (Fla. 1st DCA 1985)…all under the special venue provisions of Section 61.14, Florida Statutes, relating to modification of support agreements. Therefore, venue must be controlled by Section 47.011, Florida Statutes, the general venue statute. See, McIntyre v. McIntyre, 352 So. 2d 142 (Fla. 1st DCA 1977). Under the general venue statute, “actions may be brought only in the county where the defendant resides, or where the cause of action accrued, or where the property in litigation is located.” § 47.011, F.S. (1983). Here, there…
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Radziwon v. Gutillo, 447 So. 2d 452 (Fla. 4th DCA 1984)…nt and separation agreement. Regardless of what appellant would like to call her stated cause of action, it appears to us that venue should be laid in Pinellas County. Ruscoe v. Ruscoe, 327 So. 2d 93 (Fla. 4th DCA 1976); accord McIntire v. McIntire, 352 So. 2d 142 (Fla. 1st DCA 1977). Accordingly, the order appealed from is affirmed. ANSTEAD, C.J., and HURLEY, J., concur.…
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Nunez-Miller v. Miller, 209 So. 3d 619 (Fla. 5th DCA 2017)…located.” § 47.011, Fla. Stat. (2015). Accordingly, Florida courts have determined that an action to establish a foreign divorce decree as a Florida judgment is to be filed in the county where the responding party resides. See McIntire v. McIntire, 352 So. 2d 142, 143 (Fla. 1st DCA 1977) (“[W]hen a complaint to establish a foreign decree is brought, F.S. 47.011 controls and the action should be brought in the county where the responding party resides.”); Ruscoe, 327 So. 2d at 94 (holding that in action to es…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brennan v. Brennan, 192 So. 2d 782 (Fla. 3d DCA 1966)
- Ruscoe v. Ruscoe, 327 So. 2d 93 (Fla. 4th DCA 1976)