Opinion
No. 94-1045.
November 10, 1994.
David A. Maney of Maney, Damsker, Harris Jones, P.A., Tampa, and John M. Cain and Andrea L. Cain, of Cain and Ewald, P.A., Orlando, for petitioner.
Richard D. West, of West Weiss, P.A., Orlando, and Deborah Marks, North Miami, for respondent Scott A. Skiles.
No Appearance for respondent, Hon. Linda A. Gloeckner.
Elizabeth A. Skiles ("Mother") has filed this petition for writ of mandamus or, in the alternative, writ of prohibition to vacate an order entered in a custody dispute by the Honorable Linda A. Gloeckner, Circuit Judge of the Ninth Judicial Circuit. The Mother had previously filed a dissolution and custody action in Indiana. The Indiana court determined that it had jurisdiction and entered orders. Scott Skiles ("Father") filed a motion in Florida to determine jurisdiction over the parties and their children in a dissolution and custody case. The Father sought to establish that Florida was the proper forum for the parties, because Florida is the "home state" for the purpose of the UCCJA, not Indiana. After Judge Gloeckner conferred with Judge Gray of the Indiana circuit court, Judge Gloeckner entered an order. Judge Gloeckner's order determined that Florida had jurisdiction over the parties, the dissolution, the children and the custody matters relating to the children because Florida was the permanent residence of the parties and the children. The issue raised in this petition is whether the courts of Florida should have declined to exercise jurisdiction after the courts of Indiana had determined that they had jurisdiction "for both the dissolution action and the issues of custody, visitation, and support of the parties' minor children." We grant the issuance of the writ.
A writ of prohibition is the proper remedy where a circuit court improperly fails to decline to exercise jurisdiction as required by the Uniform Child Custody Jurisdiction Act. English v. McCrary, 348 So.2d 293 (Fla. 1977); Hamill v. Bower, 487 So.2d 345 (Fla. 1st DCA 1986).
This statement refers to Judge G. Thomas Gray's order of 15 December 1993. Judge Gray is a Special Judge, Brown Circuit Court, Indiana.
FACTS
The Mother and Father are from Indiana. They were married in Indiana and they have relatives and friends who continue to live in Indiana. They own a home in Indiana and spend at least three months during the summer in Nineveh, Indiana. Their oldest child was born in Indiana and one of their children is scheduled to have surgery in Indiana. In their Indiana home, the Father maintains his trophies from his basketball career. Because the Father is a professional basketball player with the Orlando Magic, he has been in Florida since 1989. The family returned to Nineveh in May 1993. They lived there until the beginning of September when they returned to Florida.
On 12 September 1993, the Mother took the children to Indiana. She alleges she did so because of an abusive family situation and because she was afraid of the Father. She filed a dissolution petition on 17 September 1993 and sought custody of her minor children. On 20 September 1993, the Indiana court entered a "temporary restraining order and order to appear" preserving the parties' assets. On the same day in Florida, the Father filed a petition for separate maintenance and a request for an order requiring the Mother to return the children to Florida. On 21 September 1993, Judge Gloeckner entered an order directing the Mother to return the children to Florida. The Father modified his pleadings to request a dissolution of marriage.
On 28 September 1993, the Mother filed a special notice of appearance in Florida seeking to dismiss the Father's petition and dissolve the order requiring her to return the children to Florida. On 18 October 1993, she also filed a special notice of appearance to dismiss the Father's petition for dissolution of marriage. Judge Gloeckner contacted Judge Gray in Indiana and stayed the Florida court proceedings until Judge Gray conducted a hearing on jurisdiction. He entered his order finding jurisdiction on 15 December 1993. Judge Gloeckner entered her order finding that Florida was the home state on 11 April 1994. On 9 June 1994, the Indiana trial court held a hearing to reconsider transferring jurisdiction to Florida. The trial court refused to do so. This order was appealed to the Indiana Court of Appeals to review the Brown County Circuit Court's decision as an interlocutory order. The Indiana Court of Appeals refused to review the decision.
The Father filed a petition to transfer the appeal to the Supreme Court of Indiana and also filed a petition for mandamus and prohibition in the Supreme Court of Indiana. On 16 June 1994, the Indiana Supreme Court denied the Father's petition for writ of mandamus and prohibition and on 25 June 1994 denied the Father's petition to transfer. The Mother filed her writ with this court on 20 June 1994.
APPLICABLE LAW
Both Florida and Indiana have adopted the Uniform Child Custody Jurisdiction Act ("UCCJA"). The parties agree that the UCCJA does apply to this case and is dispositive of the issue. Since there is no dispute that Indiana entered the initial determination of custody, our examination begins with Judge Gloeckner's ability to review the order of the Indiana court.
See §§ 61.1302 — .1348, Fla. Stat. (1991).
See Ind. Code § 31-1-11.6-1.
The general stated purposes of the UCCJA are to: (1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in the state which can best decide the case in the interest of the child; (3) assure that the litigation concerning the custody of a child takes place ordinarily in the state with which the child and the child's family have the closest connection and where significant evidence concerning the child's care, protection, training, and personal relationships is most readily available; (4) discourage continuing controversies over the child's custody and (5) avoid relitigation of custody decisions of other states. § 61.1308, Fla. Stat. (1991). Before deciding whether she should exercise or decline to exercise jurisdiction to enter any custody orders in Florida, Judge Gloeckner communicated with Judge Gray once she became aware that another state was involved. See Newcomb v. Newcomb, 507 So.2d 1145 (Fla. 3d DCA 1987) (where there is an allegation that Florida is the home state in a custody matter, Florida courts have jurisdiction to determine whether a court from another state exercised its jurisdiction in conformity with the UCCJA). This communication is encouraged by the UCCJA.
Section 61.1316(4) authorizes a judge to communicate with the judge of another state for the purpose of exchanging information about jurisdiction. § 61.1316(4), Fla. Stat. (1991). Judge Gloeckner spoke with Judge Gray and agreed to allow him to conduct an evidentiary hearing on the issue of jurisdiction. Judge Gray was to advise Judge Gloeckner of the result of the hearing. Judge Gloeckner stayed the Florida proceedings until Judge Gray had completed his hearing. Judge Gloeckner filed her written notes from the conversation with the clerk of the court and notified the lawyers of the conversation on 18 October 1993. Cf. Burkhalter v. Burkhalter, 634 So.2d 761 (Fla. 1st DCA 1994) (appellate court relinquished jurisdiction to the trial judge to supplement the record with the conversations the Florida trial judge had with the trial judge from North Carolina since the Florida judge used this information to vacate prior custody orders). After the hearing in Indiana, Judge Gray entered custody orders. Notice of this determination was forwarded to Judge Gloeckner in December 1993. Judge Gloeckner also received a transcript of the hearing held in Indiana. Judge Gloeckner reviewed these orders and found Florida to be the home state for purpose of the dissolution and custody issues.
Judge Gloeckner concluded that the evidence presented to her established that the Mother and the Father were residents of Florida. She wrote in her order that the Mother and Father had Florida driver's licenses and their cars were registered in the State of Florida, the Father was registered to vote in Florida, the family had lived continuously in Florida since 1989, one of their children was born in Florida and the other attended school in Florida, they claimed Florida as their residence on their federal income tax returns and the Father, a professional basketball player for the Orlando Magic, had been employed in Florida since 1989. Finally, Judge Gloeckner found that the family had been continuously in Florida, except for summer vacations, since 1989. She noted the children were only removed when the Mother went to Indiana to file the dissolution and custody case. Judge Gloeckner concluded that Indiana never had jurisdiction because "the parties have insufficient nexus with the State of Indiana save that Respondent [Mother] went there to ask for jurisdiction."
RULING OF THE COURT
We hold that Judge Gloeckner should have refused to exercise jurisdiction in this case because there was a pending custody proceeding in Indiana and the Indiana circuit court exercised jurisdiction substantially in conformity with the UCCJA. See § 61.1314(1), Fla. Stat. (1991); Siegel v. Siegel, 575 So.2d 1267 (Fla. 1991) (held that Florida court should have declined to exercise jurisdiction over a wife's action to obtain custody of a child where there was a pending custody proceeding in New York).
Section 61.1314(1), Florida Statutes (1991) reads in pertinent part:
A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.
There are several bases for finding that Indiana had jurisdiction. The trial court found that Indiana was the home state because the family maintained a home there and spent time there during the year. The court also found that the family had relatives there, they were active in the community and it was the place where the Mother and Father married. The court found that the Father's employment caused him to be absent from the state. Finally, the court concluded that it was in the best interest of the children that the custody case remain in Indiana.
Was the finding that Indiana was the home state consistent with Indiana law? In the case of State Election Bd. v. Bayh, 521 N.E.2d 1313 (Ind. 1988), the Indiana Supreme Court was called upon to determine if a candidate for governor, Evan Bayh, was a resident of the state, even though the majority of his life was spent outside the state. The court examined a number of factors including his expressed desire to return to Indiana at some point in the future. They opined that physical presence was only one of the factors to be considered in determining residency. They also held that they would not reweigh the fact-findings of the trial court unless they were clearly erroneous. Id. at 1315. In this case, the children's home state, or residency, is determined by the Mother's residency. See Ind. Code § 31-1-11.6-2(5). The Indiana court found that the Mother and Father were residents of Indiana and that the temporary absences of nine months per year did not change their residency. Furthermore, the Mother and Father's Florida house is in Seminole County. Although Seminole County is in the Eighteenth Judicial Circuit, the Father filed his dissolution and custody case in Orange County, which is in the Ninth Judicial Circuit. The Father cannot argue that Florida is the home state because that is where the family and marriage existed, yet select the wrong venue to file his dissolution action. The Eighteenth Judicial Circuit, if we accept the Father's argument, is where the breach occurred or the marriage last existed; thus, that is where the case must be filed. Carroll v. Carroll, 322 So.2d 53 (Fla. 1st DCA 1975), approved, 341 So.2d 771 (Fla. 1977). The finding that Indiana is the home state is in conformity with Indiana law interpreting the UCCJA.
Alternatively, even if we find that Indiana is not the home state, the factual