5D02-1912 Miles v. Hyman

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2003 » 5D02-1912 Miles v. Hyman

State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-1912

Case Date: 02/03/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003

SHANNON R. MILES, ETC., Appellant, v. Case No. 5D02-1912 SEAN M. HYMAN, Appellee. / Opinion filed February 7, 2003 Appeal from the Circuit Court for Seminole County, Gene R. Stephenson, Judge. Linda D. Schoonover of Linda D. Schoonover, P. A., Altamonte Springs, for Appellant. Andrew Zelman of Cotter & Zelman, P. A., Winter Park, for Appellee. ORFINGER, J. The former wife, Shannon R. Miles, appeals the trial court's order dismissing for lack of jurisdiction her supplemental petition for modification of a final judgment of dissolution of marriage and changing primary residential responsibility of her minor children. Because we find that Florida has jurisdiction to consider the former wife's petition, we reverse. The marriage of the former wife and Sean M. Hyman, the former husband, was dissolved in Seminole County, Florida, in June, 1999, with the parties agreeing to joint custody

of their minor children.1 The former wife alleged that pursuant to the custody provisions of the final judgment, she had substantial contact with the children in Florida until September, 2000, when the former husband removed them from the state of Florida without notice or agreement, and provided no way for her to contact the children. The minor children then resided with the former husband in Texas until May, 2001, when the former husband relocated the children to Arkansas. Although the parties agree that the courts of Florida had jurisdiction to make the initial custody determination pursuant to section 61.1308, Florida Statutes (2000),2 their present
1

The court amended the final judgment in March, 2000, based on a stipulation by the

parties. Section 61.1308 of Florida's Uniform Child Custody Jurisdiction Act (UCCJA), provides: (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (a) This state: 1. Is the home state of the child at the time of commencement of the proceeding, or 2. Had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his or her removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; (b) It is in the best interest of the child that a court of this state assume jurisdiction because: 1. The child and his or her parents, or the child and at least one contestant, have a significant connection with this state, and 2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; (c) The child is physically present in this state and: 1. The child has been abandoned, or 2. It is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment 2
2

disagreement stems from the parties' differing views regarding Florida's continuing jurisdiction to modify the initial custody determination. The former husband moved to dismiss the former wife's petition, contending that the Florida court lacked subject matter jurisdiction to alter the custody determination because the children lacked any significant contacts with Florida. The trial court agreed and dismissed the petition. The jurisdiction of a Florida court to alter its own custody orders does not automatically terminate simply because the children may have resided outside Florida for more than six months, when it appears the children maintained significant contacts with Florida. Yurgel v. Yurgel, 572 So. 2d 1327, 1331-32 (Fla. 1990). "To the contrary, jurisdiction must be presumed to continue once it is validly acquired under section 61.1308; and it continues up until a Florida court expressly determines on some other basis that jurisdiction no longer is appropriate, until virtually all contacts with Florida have ceased, until some other Florida statute terminates jurisdiction, or until jurisdiction is terminated by operation of the [Parental

or abuse or is otherwise neglected; or (d)1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and 2. It is in the best interest of the child that a court of this state assume jurisdiction. (2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination. (3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody.

Download 5D02-1912 Miles v. Hyman.pdf