HOMER MCABEE, III v. ALICIA MARIE MCABEE , 259 So. 3d 134 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HOMER McABEE, III,
Appellant,
v.
ALICIA MARIE McABEE,
Appellee.
No. 4D17-3450
[December 12, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael G. Kaplan, Judge; L.T. Case No. DVCE 17-
004334.
Michael M. Giel of Giel Family Law, P.A. and Kyle A. Bedran of Bedran
Law, Jacksonville, for appellant.
Jonathan Z. Schiller of Brinkley Morgan, Fort Lauderdale, for appellee.
FORST, J.
Homer McAbee, III (“the father”) appeals from the trial court’s final
judgment of injunction to protect the parties’ minor child from domestic
violence. Pursuant to the final judgment, the trial court terminated the
father’s contact with the child for the rest of her minority.
The parties do not dispute, and we agree, that the trial court properly
exercised its temporary emergency jurisdiction over the child under the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).1
However, what we have here is a failure to communicate, as the Florida
trial court failed to consult with the Virginia court—where custody
proceedings had been ongoing for years, and which had made a custody
determination just two months earlier—before making its own custody
determination, in violation of a mandatory directive of the UCCJEA. The
trial court’s failure to communicate with the Virginia court before making
a custody determination requires that we remand for further proceedings.
1 Section 61.517, Fla. Stat. (2017).
Background
A full recitation of the facts is necessary to demonstrate the purpose of
the UCCJEA and why its communication requirement is vital.
The father and Alicia Marie McAbee (“the mother”) married in South
Carolina in 2007, and divorced in Virginia in 2015. They have one
daughter (“the child”), born in 2009.
At issue are the mother’s allegations that the father sexually abused
the child—at age 3 in Virginia, and age 6 in Florida. The mother first
alleged the sexual abuse in 2012, around the time the parties separated.
At that time, the father admitted to sexually abusing the child in graphic
detail in letters to the mother and journal entries (collectively, “the father’s
writings”). The father also documented having a “sex addiction.” The
father later denied the sexual abuse, claiming he falsely admitted to it only
after the mother’s interrogations and threats. He further claimed the sex
addiction was a reaction to medication he was taking at the time.
The mother filed for custody in Virginia in 2013. The father underwent
psychological and sexual addiction evaluations, and the parties received
counseling from a psychologist. The psychologist concluded the father
was no threat to the child and recommended contact.
The father moved to Jacksonville, Florida in January 2014, and filed
for divorce in Virginia that April. The mother and child moved to Orlando
(Orange County, Florida) in May 2014, where they remained until August
2016.
The Virginia court heard the father’s motion for visitation in July 2014.
The mother had refused him contact with the child for 575 days. She
objected to visitation based on the father’s writings, in which he described
violent, forcible abuse on the child, including penetration. The father
testified about the mother’s interrogations and threats that, unless he
admitted everything she accused him of, he would go to jail, lose his job
and never see his daughter again. The Virginia court also heard from the
father’s psychologist and sexual disorder specialist. The mother argued
the father’s writings proved abuse, but the judge noted that the allegation
of abuse “wasn’t corroborated” by either the interviews conducted by Child
Protective Services, or the child’s examination by a sexual assault nurse
examiner (“SANE” nurse). The Virginia court granted the father supervised
visitation.
Two months later, the mother petitioned for relief in Orange County,
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Florida. The Orange County court conferred with Virginia pursuant to the
UCCJEA and dismissed the proceedings for lack of jurisdiction.
In early 2015, after an evidentiary hearing on the abuse claims and the
father’s writings—which included testimony of the father’s
neuropsychologist and a videotaped portion of the mother’s “interrogation”
of the father—the Virginia court concluded that no sexual abuse had
occurred. Accordingly, in April 2015, the Virginia court entered a custody
order giving graduated visitation to the father. Specifically, after four
supervised visits, upon the written recommendation of the court-
appointed doctor, the father would have visitation every other weekend. If
necessary (i.e., absent the parties’ agreement), the court would consider
further extending the father’s visitation after August 2015.
The mother filed more Florida petitions in October 2015. She again
relied on the father’s writings, but added claims that he had abused the
child in Florida in 2015. The Orange County court denied the petitions,
noting its previous dismissal for lack of jurisdiction, and stating that time-
sharing issues should be addressed in the parties’ Virginia divorce
proceeding.
The following month, the Virginia court was to hear the appropriateness
of extending the father’s visitation, as referenced in its April 2015 order,
and the father’s motion for emergency transfer of custody. After the
hearing, the court entered its final order of divorce. The order provided
that the April 2015 custody order “remains in effect” and, because of the
mother’s Florida filings, reserved for later determination the father’s
transfer of custody motion.
In March 2016, the Orange County court again declared that it lacked
jurisdiction, and that Virginia retained it. Several months later, at a
UCCJEA hearing to address the mother’s action to register the Virginia
divorce decree, the Orange County court ruled, yet again, that Virginia
retained jurisdiction over modification. After that hearing, the mother fled
to South Carolina with the child, without notice to the father or the court.
The record reflects that the mother and child lived in South Carolina from
August 2016 to April 2017.
The Virginia court entered an April 2, 2017 order on the father’s
amended emergency motion to transfer custody. The order awarded the
father sole physical and legal custody of the child, effective immediately,
based on the following findings:
• the initial supervised visitation was done pursuant to the
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court’s April 2015 custody order, and the child’s therapist
supported increased visitation;
• the April 2015 order provided for review of visitation after
August 2015;
• the review had not occurred but was reserved, along with
the father’s emergency motion, in the November 2015 order
and both were properly before the court for determination
on the merits;
• related proceedings occurred in Orange County, Florida—
however, after the Virginia and Florida courts conferred
regarding jurisdiction, Florida deferred to Virginia which
retained jurisdiction over custody;
• the mother violated the April 2015 custody order as
perpetuated by the November 2015 divorce decree by
removing the child from Florida and secreting her
elsewhere (South Carolina) without notice or
communication to the court or to the father, and denied
the father access to the child as required by the court’s
orders, and;
• the mother was personally served with timely notice of the
subject hearing.
Based on these findings, the Virginia court held that the mother’s
“unjustifiable conduct in removing [the child], secreting her, and denying
the Father visitation violates [the child’s] best interests and the orders of
this Court . . . .” It thus ordered that the child have no contact with the
mother pending further ruling.
The mother did not appeal the April 2017 Virginia order. Instead, in
May 2017, she sought a protective order in South Carolina. The South
Carolina court denied the petition, finding “the VA order controls” and that
“[o]rders presented this date clearly show that UCCJEA conferences have
been held and that VA continues to retain jurisdiction . . . .”
On June 2, 2017, the mother filed the underlying Broward County
petition, again alleging the father had sexually abused the child and
referencing some of his writings. The mother further alleged that the
father “has somehow, without notice to me gone to a VA court,” without
telling the Virginia court “about the open Family court case in Orlando.”
She attached to her petition a stale shelter order from the Orange County
dependency proceedings. The trial court granted a temporary injunction
and set a hearing. The father successfully moved to vacate the temporary
injunction, and on June 13, 2017, the court ordered the mother to return
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the child by noon that day. The mother did not return the child, however,
and approximately fifteen minutes before the noon deadline, a maternal
relative brought the child to a local police department where the child
reported for the first time to a law enforcement officer that her father had
sexually abused her.
The father moved to dismiss the Broward County petition, arguing res
judicata among other things. The father also requested that the court take
judicial notice of the previous Virginia, South Carolina and Orange
County, Florida orders. At the start of the three-day hearing, the court
denied the motion to dismiss and addressed the mother’s notice of intent
to offer child hearsay statements—including the child’s recent, first-time
disclosures to a police officer and 2013 and 2015 statements to her
godmother. After the police officer, the godmother and both parties
testified, the court ruled the child hearsay was admissible, and found “it
really incredulous to believe that [the father] could be forced under any
circumstances to make these statements where he acknowledges abusing
his daughter, and with the specifics that he did and the manner that he
did.” The trial court then entered its final judgment of injunction—effective
until March 2, 2027—finding the child “is the victim of domestic violence
or has reasonable cause to believe that [she] is in imminent danger of
becoming a victim of domestic violence” by the father. The trial court also
ordered that the child have no contact with the father.
In seeking rehearing, the father argued res judicata and improper
admission of child hearsay. For the first time, he also argued the trial
court was required to communicate with the Virginia court under the
temporary emergency jurisdiction statute and collateral estoppel. The trial
court denied rehearing and this appeal followed.
It is undisputed that the parties and child have not lived in Virginia
since 2014, and that Florida was not the child’s “home state” at the time
of the proceedings below, with the mother and the child having just
returned to the state only a week or so before the mother filed her petition.2
The issue we address on appeal is whether the Seventeenth Circuit (FL)
trial court should have conferred with the Virginia court before making a
custody determination.
2 Home state is defined as “the state in which a child lived with a parent or a
person acting as a parent for at least 6 consecutive months immediately before
the commencement of a child custody proceeding. . . . A period of temporary
absence of any of the mentioned persons is part of the period.” § 61.503(7), Fla.
Stat. (2017).
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Analysis
The father argues the trial court erred by not immediately contacting
the Virginia court upon learning of its custody orders, in violation of the
UCCJEA. We agree and remand for further proceedings.
“The UCCJEA is a jurisdictional act that governs subject matter
jurisdiction over child custody matters.” M.A.C. v. M.D.H., 88 So. 3d 1050,
1053 (Fla. 2d DCA 2012). Whether a court has subject matter jurisdiction
pursuant to the UCCJEA is a question of law reviewed de novo. In re
D.N.H.W., 955 So. 2d 1236, 1238 (Fla. 2d DCA 2007).
The UCCJEA provides for temporary emergency jurisdiction over child
custody “if the child is present in this state and . . . it is necessary in an
emergency to protect the child because the child . . . is subjected to or
threatened with mistreatment or abuse.” § 61.517(1), Fla. Stat. (2017).
Here, the parties do not dispute that the child was physically present in
Florida when the mother filed the underlying petition alleging sexual
abuse. Thus, we agree that the trial court had emergency temporary
jurisdiction over the matter.
However, the UCCJEA also provides that
[a] court of this state which has been asked to make a child
custody determination under this section, upon being
informed that a child custody proceeding has been
commenced in, or a child custody determination has been
made by, a court of a state having jurisdiction under ss.
61.514–61.516, shall immediately communicate with the
other court. . . .
§ 61.517(4), Fla. Stat. (emphasis added).
“‘Child custody proceeding’ means a proceeding in which legal custody,
physical custody, . . . or visitation with respect to a child is an issue,” and
“includes a proceeding for divorce, separation, . . . abuse, . . . and
protection from domestic violence, in which the issue may appear.” §
61.503(4), Fla. Stat. “‘Child custody determination’ means a judgment,
decree, or other order of a court providing for the legal custody, physical
custody, residential care, or visitation with respect to a child. The term
includes a permanent, temporary, initial, [and/or] modification order.” §
61.503(3), Fla. Stat. Here, it cannot be disputed that a child custody
proceeding had commenced in Virginia (as early as 2013), and that a
custody determination had been made by a Virginia court—most recently,
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in April of 2017.
At the hearing below, the trial court acknowledged it “ha[d] seen the
orders from Virginia.” However, the record provides no evidence that the
court ever communicated with the Virginia court—much less, that it had
“immediately communicate[d]” with the Virginia court, as required by
section 61.517(4). 3
Mandatory words impose a duty. ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 112 (2012). In S.R. v.
State, 346 So. 2d 1018 (Fla. 1977), the word “shall” was held to be
mandatory in a statute stating a “petition alleging delinquency shall be
dismissed with prejudice” if it was untimely filed, even though the
implementing rule of juvenile procedure provided the petition “may” be
dismissed. Id. at 1019. The court stated that whether “shall” is mandatory
“depends upon the context in which it is found and upon the intent of the
legislature as expressed in the statute.” Id. Section 61.517(4), Fla. Stat.
provides no indication that the legislature intended to give the Florida trial
courts discretion whether to contact the sister court before holding a
hearing and rendering a decision. “[S]hall immediately communicate” is a
mandatory directive.
The statute ensures that the court exercising temporary emergency
jurisdiction—which has only a snapshot of information pertinent to the
custody determination—obtains the knowledge of the other court to make
the best decision possible for the child. Such knowledge is especially
important in a case such as this that has involved a years-long contentious
custody dispute, heinous allegations of abuse, and the exact opposite
custody determination from the other court just two months prior.
The appropriate remedy for the trial court’s failure to immediately
communicate with the Virginia court is to remand this matter for the
Seventeenth Judicial Circuit Court to contact the Virginia court pursuant
to section 61.517(4). This course of action is supported by precedent from
the Fifth District Court of Appeal. See Earney v. Quiloan, 206 So. 3d 147,
150 (Fla. 5th DCA 2016) (“[B]ecause the trial court failed to satisfy the
contact requirement imposed by section 61.517(4), we remand with
instructions that the Florida court contact the Texas court to resolve any
conflicts that exist between the Texas divorce decree and the Florida order
suspending timesharing.”); Steckler v. Steckler, 921 So. 2d 740, 745 (Fla.
3 To the extent any contact was made with the Virginia court, the Florida trial
court failed to make a record and inform the parties of the communication, as
required by section 61.511(4), Fla. Stat. (2017).
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5th DCA 2006) (affirming trial court’s temporary emergency jurisdiction
determination, but remanding for contact with the out-of-state court).
Conclusion
The record lacks any indication that the trial court followed the
requirements of section 61.517(4), which mandated that the court
communicate with the Virginia court as part of its exercise of temporary
emergency jurisdiction. Accordingly, we remand this matter for
compliance with the statute. See Steckler, 921 So. 2d at 745. Because
the remand proceedings may require the trial court to revisit its rulings
made before final judgment, we do not consider the points raised on appeal
as to those issues. Custody of the minor child shall remain with the
mother pending the court’s compliance with section 61.517(4), and any
order directing a change in custody.
Affirmed in part, and remanded with instructions.
GERBER, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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