Edwin R. Jonas, III v. Linda B. Jonas, etc., and Nancy Gold, etc. , 2015 Fla. App. LEXIS 1836 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EDWIN R. JONAS, III,
Appellant,
v.
LINDA B. JONAS, individually and as Trustee of a constructive trust;
and NANCY GOLD, individually,
Appellees.
No. 4D13-1438
[February 11, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lucy Chernow Brown, Judge; L.T. Case No.
502002CA005708AH.
Roderick V. Hannah of Roderick V. Hannah, P.A., Hollywood, for
appellant.
Eric C. Christu of Shutts & Bowen, LLP, West Palm Beach, for appellee
Linda B. Jonas.
ON MOTION FOR REHEARING
WARNER, J.
We deny appellant’s motion for rehearing but vacate the prior opinion
and issue the following corrected opinion.
Appellant challenges the trial court’s dismissal, on grounds of comity
and the principle of priority, of his action collaterally attacking a
domesticated foreign judgment. The court determined that these
proceedings arose out of a New Jersey divorce, and taking jurisdiction
would interfere with New Jersey’s exercise of jurisdiction. We affirm.
In 1997 and 1999, the appellee/former wife instituted proceedings to
domesticate judgments in Florida which arose from the parties’ New Jersey
divorce. Those decrees awarded the former wife judgments for unpaid
alimony and child support. The New Jersey court also directed the
establishment of a constructive trust to be funded with properties owned
by the appellant/former husband, which it instructed the former wife to
sell. In its order, the court provided that the former wife may pay the
judgments from these funds if the former husband otherwise defaulted on
his obligations. In the later order, the court also declined to consider the
former husband’s claims to an accounting of the constructive trust on the
grounds that the husband had left New Jersey and refused to appear in
court. The court held that it would adjudicate those claims if the former
husband would return to New Jersey to contest them.1
In 2002, the former husband filed suit in Florida collaterally attacking
the foreign judgment, for breach of trust, breach of fiduciary duty and
negligence. He demanded an accounting of the New Jersey constructive
trust, as he contended that the former wife had mismanaged the assets of
the trust, and the judgments should have been paid from the constructive
trust proceeds. Thus, he claimed that the judgments should be satisfied.
In July 2003, the Florida court domesticated the New Jersey judgments,
after earlier refusing to allow discovery involving credits to the judgment,
due to the rulings of the New Jersey courts requiring the former husband
to return to litigate those issues there.
Subsequently, the husband filed a second amended complaint in his
collateral attack. The proceedings became complicated, and several orders
of the Florida courts required the former husband to return to New Jersey
to litigate the trust issues. He had filed proceedings to litigate the issue in
New Jersey, but the New Jersey court denied his requests for accounting
without prejudice, because he had absconded from the jurisdiction. The
court ruled that if he would return to the state, those claims would be
considered.2
1 Order in Jonas v. Jonas, Docket No. FM-00259-89, Superior Court of New
Jersey, Chancery Division, Camden County, dated May 19, 1999 (“Defendant’s
request that the Court order Plaintiff to give an accounting of funds held in
constructive trust is denied without prejudice. In the event Defendant returns to
the jurisdiction of New Jersey, appears before this Court, and is bound by the
Order of this Court, the Court may order an accounting by Plaintiff of trust
monies.”).
2 Also delaying further proceedings in Florida was the former husband’s
bankruptcy in which he filed an Adversary Complaint against his former wife
making essentially the same allegations that he made in the Florida complaint.
His bankruptcy petition was later dismissed. In various orders entered in that
proceeding, the bankruptcy judge refused the former husband’s requests for an
accounting as to the trust assets because of the New Jersey proceedings.
2
In the meantime, the former husband moved to Montana, and the
former wife also domesticated the judgments in Montana. The former
husband litigated the same claims in Montana as he had filed in Florida.
The Montana courts declined jurisdiction, requiring the former husband
to return to New Jersey, as demanded by the New Jersey courts, to litigate
the matter.
Not to be deterred, the former husband continued to pursue the second
amended complaint in Florida, again raising the same claims. Finally, in
2013, upon motion by the former wife, the trial court dismissed the claims
based upon priority and comity.
On appeal, the former husband claims that Florida has jurisdiction to
adjudicate a collateral attack on a domesticated judgment, citing to Nichols
v. Nichols, 613 So. 2d 137, 139 (Fla. 4th DCA 1993), which holds that a
foreign judgment, domesticated in Florida, can be collaterally attacked
based upon extrinsic fraud. Nichols is inapplicable. The former husband
is not challenging the validity of the New Jersey judgment; he is claiming
that the Florida domesticated judgment should have been satisfied
through application of the funds in the constructive trust. All of his claims
revolve around the management of the constructive trust by the former
wife and the application of its proceeds to satisfying his obligations to her.
Nichols does not control this case.
Instead, principles of comity and priority required the court to decline
jurisdiction, as the trial court properly found. Proceedings involving this
family began in New Jersey in the 1990s. The courts of that state assumed
jurisdiction, adjudicated the alimony obligations and child support, and
directed the establishment of the constructive trust which is the source of
much of the litigation here. Although first ordered to appear in New Jersey
in 1999, the former husband refused and left the state. When the former
husband, through counsel, sought an accounting of the constructive trust,
complaining that the former wife was mismanaging the funds and not
using them to satisfy his obligations, the New Jersey courts determined
that those claims could be considered when the former husband returned
to New Jersey. These orders were appealed and affirmed by the New Jersey
courts. Thus, the former husband can obtain in New Jersey the relief he
seeks.
Comity requires the courts of this state to refrain from exercising
jurisdiction in this case. The New Jersey courts have prior jurisdiction
and have demanded that, in order to obtain relief, the former husband
return to their jurisdiction, from which he absconded.
3
When a court is confronted with an action that would
involve it in a serious interference with or usurpation of this
continuing power, ‘considerations of comity and orderly
administration of justice demand that the nonrendering court
should decline jurisdiction * * * and remand the parties for
their relief to the rendering court, so long as it is apparent that
a remedy is available there.’
Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir. 1971) (footnote
omitted); see also Cermesoni v. Maneiro, 144 So. 3d 627, 630 (Fla. 3d DCA
2014) (quoting Mann). The Montana court also followed that principle
when the former husband sought the same relief there. Consistent with
the Montana court, we too require the former husband to return to New
Jersey to pursue his relief.
While the principle of priority also applies, as New Jersey was the first
court to assert jurisdiction, see Siegel v. Siegel, 575 So. 2d 1267, 1272
(Fla. 1991), the usual remedy in such cases is to stay the subsequent
proceeding in favor of the prior proceeding. Under the circumstances of
this case, however, the court did not err in dismissing the case rather than
issuing a stay. This litigation has been pending in the Florida courts for
twelve years. Prior orders of the Florida trial courts have determined that
New Jersey is the appropriate forum, yet the former husband has failed to
litigate in that forum. The interests of judicial economy and finality require
that this action in Florida come to an end. If the former husband is
successful in having the judgments in New Jersey satisfied, he can file
those satisfactions in Florida and the domesticated judgments will also be
satisfied.
Having been told by two states that he must pursue his claims in New
Jersey, the former husband should do so. We affirm the ruling of the trial
court.
TAYLOR and KLINGENSMITH, JJ., concur.
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