Nadine Mcindoo v. Ashley Atkinson

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NADINE MCINDOO,
Appellant,
v.
ASHLEY ATKINSON,
Appellee.
No. 4D13-3374
[February 18, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Laura M. Watson, Judge; L.T. Case No. FMCE13006106.
Nadine McIndoo, Lauderhill, pro se.
No appearance for appellee.
CONNER, J.
Appellant, Nadine McIndoo (“the mother”), appeals the trial court’s
order denying her petition to domesticate a foreign child custody
judgment. We agree with her argument that the trial court erred in
determining that it did not have jurisdiction over the case and we reverse.
Factual Background and Trial Proceedings
In November 1999, an order was entered by a New York court placing
custody of the parties’ child with the mother and granting the father
visitation (“the NY Order”). The mother moved with the child to Florida in
2003.
In December 2012, there was a child protection investigation and court
proceeding regarding an incident involving the mother and the child. The
child was temporarily “removed from the care of his natural mother,” and
“placed in the care of his natural father” while the child protection
proceeding was pending. After gaining temporary care of the child, the
father relocated the child to Arizona. The child protection proceeding was
dismissed later the same month, and the investigation was closed in early
January 2013.
Once the investigation into the mother was closed, she attempted to
regain custody of the child, but the father refused to return the child to
the mother.
In May 2013, the mother filed a petition in the court below to
domesticate the NY Order. A week later she filed a notice of registration of
the NY Order and an emergency verified motion for a child pick-up order.
The trial court entered an order granting the motion for a pick-up order on
the same day. Within the form order, the trial court checked the box
stating: “This Court exercised and continues to exercise original
jurisdiction over the minor children listed below under the [UCCJEA]. . .
specifically, section 61.514, Florida Statutes.”1
The father filed a response and opposition to the mother’s petition to
domesticate the NY Order, citing sections 61.514 and 61.519, Florida
Statutes (2013), and arguing that the trial court did not have jurisdiction
because, among other reasons, the child had not lived in Florida for the
six months prior to the filing of the mother’s petition, and also because a
court in Arizona had begun proceedings over the issue. The father’s
position regarding the six-month residency requirement was predicated on
the fact that he removed the child to Arizona. Attached to the father’s
response were two “minute entries” from an Arizona court.2 One granted
the father temporary sole legal decision-making authority and sole legal
physical custody over the child, as “[t]his w[ould] allow Father sufficient
time for a determination as to the home state of the child and whether a
New York court, a Florida court, or this court has jurisdiction to modify a
custody order in accordance with the U[CCJEA].” The other entry
extended the temporary orders of the court until August 15, 2013, or “a
decision by the Florida Court to exercise jurisdiction.”
On August 9, 2013, after a hearing, the trial court entered an order
denying the mother’s petition to domesticate the NY Order. Based on its
written order, it appears that the trial court found that it did not have
1 “The general purposes of the UCCJEA are to avoid jurisdictional competition
and conflict with other courts in child custody matters; promote cooperation with
other courts; insure that a custody decree is rendered in the state which enjoys
the superior position to decide what is in the best interest of the child; deter
controversies and avoid relitigation of custody issues; facilitate enforcement of
custody decrees; and promote uniformity of the laws governing custody issues.”
Arjona v. Torres, 941 So. 2d 451, 454 (Fla. 3d DCA 2006) (citing § 61.502, Fla.
Stat. (2005)).
2 The father evidently had filed a child custody proceeding in Arizona.
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subject-matter jurisdiction for three reasons: (1) the mother did not file a
motion regarding a “child custody proceeding” as defined by section
61.503(4), Florida Statutes (2013); (2) Florida was not the “home state” of
the child; and (3) Arizona had already begun proceedings “in substantial
conformity with the UCCJEA.” The mother appeals this order. We discuss
the trial court’s determinations sequentially.
Appellate Analysis and Disposition
“Child Custody Proceeding”
Section 61.503(4), Florida Statutes (2013), states:
(4) “Child custody proceeding” means a proceeding in which
legal custody, physical custody, residential care, or visitation
with respect to a child is an issue. The term includes a
proceeding for divorce, separation, neglect, abuse,
dependency, guardianship, paternity, termination of parental
rights, and protection from domestic violence, in which the
issue may appear. The term does not include a proceeding
involving juvenile delinquency, contractual emancipation, or
enforcement under ss. 61.524-61.540.
§ 61.503(4), Fla. Stat. (2013) (emphasis added). As can be seen, the
petition for domestication of foreign judgment and notice of registration
filed by the mother, pursuant to sections 61.526 and 61.528, respectively,
are expressly not included as “child custody proceedings” under the
UCCJEA. The trial court order does not cite to, nor can we find, any
statutory authority which requires that a proceeding be a “child custody
proceeding” under the definition in the UCCJEA before the trial court can
have jurisdiction to act upon a petition to domesticate a foreign custody
order. To the contrary, both the statute governing domestication of a
foreign judgment (section 61.526) and registration of a judgment (section
61.528) are contained within Florida’s UCCJEA statutes. It would be
absurd for the legislature to have placed within Florida courts the power
to recognize and register a foreign judgment if the same chapter prohibits
jurisdiction over the same. Therefore, the fact that the mother’s filings
were not regarding a child custody proceeding is irrelevant to the question
of jurisdiction to domesticate a foreign custody order.
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The “Home State” Rule
Likewise, the trial court also incorrectly applied the “home state” rule
to the mother’s petition to domesticate the NY Order. Section 61.503(7),
Florida Statutes (2013), provides:
(7) “Home state” means 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. In the case of a child younger than
6 months of age, the term means the state in which the child
lived from birth with any of the persons mentioned. A period
of temporary absence of any of the mentioned persons is part
of the period.
§ 61.503(7), Fla. Stat. (2013) (emphasis added). The “home state” rule
applies to “child custody proceedings.” As discussed above, and found by
the trial court, the petitions filed by the mother did not constitute “child
custody proceedings.” This means that the “home state” rule did not apply
to the mother’s petitions either.
Perhaps the trial court may have incorrectly applied the “home state”
rule based on section 61.514, Florida Statutes (2013), since the father’s
opposition to the mother’s petition relied in large part on this section of
the UCCJEA. This section states:
(1) Except as otherwise provided in s. 61.517, a court of this
state has jurisdiction to make an initial child custody
determination only if:
(a) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of
the child within 6 months before the commencement of the
proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state.
§ 61.514, Fla. Stat. (2013) (emphasis added). However, as stated in the
statute, this “home state” rule applies to an initial child custody
determination, whereas the petition and notice filed by the mother were
not for an initial child custody determination. Instead, the petition and
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notice sought to have Florida recognize the previous custody
determination made in the NY Order.3
Simultaneous Proceedings in Arizona
Section 61.519, Florida Statutes (2013), which governs the trial court’s
jurisdiction in simultaneous proceedings, states:
Except as otherwise provided in s. 61.517, a court of this state
may not exercise its jurisdiction under ss. 61.514-61.524 if, at
the time of the commencement of the proceeding, a proceeding
concerning the custody of the child had been commenced in a
court of another state having jurisdiction substantially in
conformity with this part, unless the proceeding has been
terminated or is stayed by the court of the other state because
a court of this state is a more convenient forum under s.
61.520.
§ 61.519, Fla. Stat. (2013) (emphasis added). Although the trial court did
not specifically cite to this statute in its order, since it stated that
“Arizona’s proceedings are in substantial conformity with the UCCJEA,” it
appears that the trial court concluded it did not have subject-matter
jurisdiction based, at least in part, upon the simultaneous proceedings
statute. In doing so, the trial court misapplied the statute. Since section
61.519 expressly states that the court may not exercise jurisdiction under
sections 61.514-61.524, the simultaneous proceedings statute did not bar
the trial court’s jurisdiction to entertain the mother’s petition to
domesticate under section 61.526 or the notice she filed under section
61.528.
Proper Statutory Application
The proper statute which the trial court should have applied was
section 61.526, Florida Statutes (2013). Section 61.526 states:
A court of this state shall recognize and enforce a child
custody determination of a court of another state if the latter
court exercised jurisdiction in substantial conformity with
this part or the determination was made under factual
3 The inapplicability of the home state rule to the process for domestication of a
foreign judgment does not, however, prevent a party from being able to make a
“home state” challenge in an appropriate context, such as a subsequent request
for a modification of a domesticated order. See § 61.516, Fla. Stat. (2013).
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circumstances meeting the jurisdictional standards of this
part and the determination has not been modified in
accordance with this part.
§ 61.526(1), Fla. Stat. (2013) (emphasis added). Since the factual
circumstances of the case meet the jurisdictional standards of the statute,
and the NY Order has not been modified, the trial court should have
granted the mother’s petition of domesticate the NY Order.
Additionally, since the father failed to file a valid objection to the
mother’s notice of registration, the NY Order should have also been
confirmed as a registered order, and thus, was enforceable as of the date
of the registration. See §§ 61.528(3)(a), (5), Fla. Stat. (2013).
We therefore reverse the trial court’s order and remand with
instructions that the trial court enter an order granting the mother’s
petition to domesticate the NY Order and confirming the registration of the
NY Order.
Reversed and remanded.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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