PRACTICE & PROCEDURE Flashcards
What subject matter jurisdiction
Whether the court has the power to hear the specific kind of claim that is brought to that court
How is SBJ conferred upon a court?
By constitution or by statute
How does family court have SBJ over DOM
By statute - 61.021, which requires that one party must have lived in FL 6 months prior to filing but don’t forget the court cannot act if it does not have personal jurisdiction over the respondent.
Who has the burden of proving that the court has SBJ to hear a DOM action
The petitioning party has the burden to provide either they have met the 6 month requirement of the other party has been
What date is used for purposes of establishing residency for SBJ?
DOF
What is the definition of a residence within the meaning on 61.021?
An actual physical presence in Florida coupled with an intent to remain here indefinitely
Must a party be physically present in the State of FL for 6 months to establish residency?
No, party can travel. Even if presence is de minimus, a court can assume jurisdiction if a party’s affairs and interests remained in FL, creating presence and requisite objective intent to be a FL residnece.
What are signs or indicators of residence
- Voter registration
- Auto tag registration
- Place of employment
- Filed Statement of Domicile
- Location of Real Property Owned
- Record of Utility Payments
- Residence of MC
- Homestead exemption filed
- Family Home maintained
- Driver’s License Address
- Telephone
Can both parties testify as to residency requirement to satisfy burden?
No - it must be corroborated.
What else is needed to meet burden of residency besides testimony
It must be corroborated by valid FL DL, FL voter card, valid FL ID or testimony of a 3rd party
Can residency be established by agreement of the parties?
No - it can never be assumed. SBJ CANNOT BE WAIVED, ACQUIESED OR AGREED UPON
What is the distinction between residence and domicile
A person can only have one domicile where as they can have several residences - Court must determine in FL is “THE CHEIF SEAT OF THE PARTY’S HOUSEHOLD AFFIARS OR HOME INTERESTS”
Are military spouses deemed FL residences while living here?
Presumed residents under 47.081 “Any person in any branch of the Armed Forces of the United States, and the husband or the wife of any such person, if he or she is living within the borders of the state, shall be prima facie a resident of the state for the purpose of maintaining any action.”
A military spouse who was a FL resident before entering military who never established a permanent resident elsewhere continues to be FL resident
Can a foreign citizen without permanent residency status satisfy 61.021 in order to file DOM in FL
Yes - so long a they are present in FL with the requisite intent - even if they are subject to deportation
What happens to a foreigners residency status if they are deported
They lose their domicile at that point
What happens to FJ and Orders that are entered without SMJ
VOID AB INITIO (from the beginning)
What is the impact of death of a spouse
It terminates the marriage by operation of law
What types of divorces can COUNTY courts hear
simplified DOM or final order in an uncontested DOM
Does court have SMJ to enter a FJ if at final hearing court issues oral ruling but one spouse dies before it’s reduced to a writing?
NO SMJ
What happens if a party dies before entry of FJ
Court lacks SBJ to enter one BUT it retains jurisdiction over child.
How could a court retain SBJ even in the event of death
If matter was bifurcated and and a FJ is signed dissolving marriage but reserving jur as to the rest. Then, court has continued SBJ even upon death of spouse.
HYPO:
FJ dissolves marriage is entered but a motion for rehearing filed on collateral issue, not the dissolution itself. One spouse dies. What should happen
It can be completed since the appeal concerned collateral issues not issues at to the DOM itself.
Does court retain SMJ to address motion for attorney’s fees and cost in the event of death of spouse?
Yes, if motion filed before death of a party.
A party obtains a default final judgment and the other party files a Motion to Set Aside based on excusable neglect before the party who obtained the default judgment dies. Does the court have SBJ?
The court may set aside the final judgment and determine the issues as if the parties were living.
when should could consider bifurcation
Under exceptional circumstances when it’s for best interest of parties or their children
What is considered an exceptional circumstance for purposes of a bifurcation?
Impending death or terminal illness of a party
When is the court’s SBJ terminated in a DOM?
Upon entry of a FJ UNLESS COURT RETAINS JUR TO ENFORCE OR OTHERWISE ALLOWED BY STATUTE
Once the court’s SBJ is terminated because case has concluded, does the court retain jurisdiction to enforce?
Yes or as otherwise allowed by statute
We know that modification of durational or rehab alimony has to be filed before term expires, but what if payor makes payment before expiration?
Can still modify if filed before expiration period.
Does court have to specifically reserve jur to modify amounts or duration?
No - court’s have jur per 61.14
What happens to attorney fees if not included in FJ
FJ MUST RESERVE JUR ON FEES IF TO BE DETERMINED AT A LATER DATE - EVEN IF PARTIES STIPULATED THAT COURT SHOULD RETAIN JUR
Can court amend a FJ to include reservation for fees?
NO - IT HAS NO JURISDICTION TO DO SO
How does circuit court have SBJ
Since family cases are in chancery - it’s conferred not only by Chapter 61 but also by FL Constitution
What is the burden of proof to prove SBJ in a DOM
The standard of evidence to establish residency—and therefore subject matter jurisdiction in a dissolution suit—is “clear and convincing” rather than merely a preponderance.
What is the standard of review on appeal for a MTD for lack of residency
abuse of discretion
Who must court have personal jurisdiction over in order to grant divorce
SBJ and Personal Jur over petitioner - if it doesn’t have personal jur over R, it can grant divorce but not deal with rest
Will a prior dissolution action in a prior state of residency interfere with the Florida court’s jurisdiction if the residency requirement is satisfied?
No
Can residency be established where a party equally divides time between two residences,?
Yes if Florida is found to be “the chief seat of the party’s household affairs or home interests.
Does a military person or their spouse necessarily have to meet residency requirement
Section 47.081, Florida Statutes, provides that any person serving the military—as well as the spouse of such person—is presumed to be a Florida resident “for the purpose of maintaining any action” if he or she is living in Florida. Further, “Florida courts have recognized an exception to the statutory residency demand as to members of the military, allowing them to seek divorce in Florida without proving their actual presence in the state during the six-month statutory period prior to the filing of their petitions of dissolution.”
BUT
While requirement of “physical or actual presence in the state is excused under these circumstances, concurrent intent to be a permanent Florida resident remains an element of the residency test” for military service members
Can a foreign refugee meet residency requirements
Foreign refugees may also be considered Florida residents for jurisdictional purposes under section 61.021.
Can a foreign refugee meet residency requirements if they under an order for deportation?
Yes- residency is only lost upon deportation
If a trial court gives an oral ruling at final hearing and then a spouse dies before entry of FJ - what happens?
Court loses SBJ - court cannot issue order nunc pro tunc back to date before spouse died
HOWEVER
where a trial court orally pronounces its findings on a motion for rehearing and a spouse dies before the court’s order is reduced to writing, the trial court may reduce its order to writing nunc pro tunc to the date the oral pronouncements were made.
Can trial court address a deceased spouse’s request for pre-death attorney’s fees under section 61.16?
Yes
What happens if spouse dies after entry of FJ but before time lapses for mtn for rehearing?
the dissolution decree is NOT voided and the trial court is not divested of jurisdiction to decide any remaining issues between the parties.
What is the general rule where a spouse dies after entry of a final judgment but during a pending appeal
the general rule is that the appeal must be dismissed except where the divorce decree affects the parties’ property rights. SO
In the event of a reversal of a divorce decree, “the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had
The trial court’s jurisdiction was reserved for the specific and limited purpose of assisting a sale of the parties’ Maryland property. Nonetheless, the trial court required the former wife to sign a rental listing agreement when the property still had not sold. FW appeals. What happens?
Reversed - court did not specifically reserve jurisdiction to adjudicate the issue to order rental deal absent sale.
Can TC reserve jur on issues presented to court unless parties agree?
NOPE - an issue is properly pled, and the issue is ripe for determination at the time of the final hearing, the trial court cannot reserve jurisdiction on the issue
Is a reservation of jurisdiction to consider permanent or rehabilitative alimony broad enough to include [a reservation of jurisdiction to determine] equitable distribution?
One FL court thinks so - since ED is relied upon in determining alimony….however, the best practice is for jurisdiction of each individual issue to be specifically reserved
When is it proper for the court to reserve jur on alimony
there must presently appear in the record foreseeable circumstances to take place in the future as would at that time support an award of alimony
what should lawyer do if court mistakenly fails to include reservation of jur on fees
motion for relief from judgment pursuant to Florida Family Law Rule of Procedure 12.540(b)(1) may provide relief bc it does not have SBJ to amend the FJ at that point.
Is the court required to reserve jur to enforce?
It is axiomatic that a trial court always has the inherent jurisdiction to enforce its previously entered orders enforcement is distinct from determining or modifying
What is one subject court does not have to expressly reserv jur to modi?
Children’s issues
How is SBJ determined over child custody matters
Uniform Child Custody Jurisdiction & Enforcement Act,
What is child custody determination within meaning of chapter 61
legal custody, physical custody, residential care, or visitation with respect to a child,” and do not include “child support or other monetary obligation of an individual.”
what is the critical issue in deciding if FL has jur over child
whether FL is child’s home state
How do we define a child’s homestate?
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.
If the child is younger than 6 months of age, “home state” is defined to mean the state in which the child lived from birth with any of the persons mentioned above
When can a court exercise jur over a child when it is not child’s homestate?
Regardless of a child’s ‘home state’, a court of any other state may exercise temporary emergency jurisdiction over a child who is present in that state if necessary to protect the child.
Does court need personal jurisdiction over an out of state parent to make a child custody determination
trial court’s finding that it never obtained personal jurisdiction over a party will not render the custody provision in a final judgment void.
However, lack of personal jurisdiction over a party will render void a child support determination, even if the support determination was made in connection with a custody request under the UCCJEA. This is because determinations under the UCCJEA, by express definition, do not include decisions “relating to child support or any other monetary obligation.
What does UIFSA provide in context of custody determination?
The statutory basis for establishing subject matter jurisdiction over foreign child support orders and applies to all proceedings for support or for modification of support orders, or proceedings for determination of parentage, commenced on or after July 1, 1997.
What is the purpose behind the creation of UCCJEA
- Avoid jurisdiction conflict so kids aren’t dragged state to state.
- Discourage interstate controversies
- Promote courts to cooperate so child custody is resolved in right state
- Deter abductions
- Facilitate enforcement
- Avoid relitigating
- Promote communication bw states
- Uniformity
What is the definition of a person acting as a parent under UCCJEA
Any person who is not the parent that
(a) Has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded a child-custody determination by a court or claims a right to a child-custody determination under the laws of this state.
What governs SBJ for paternity actions
742.011 -Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise. After the birth of the child, a parent may request a determination of parental responsibility and child support and for the creation of a parenting plan and time-sharing schedule pursuant to chapter
Do ALL paternity determination have to comply with UCCJEA?
NO - paternity actions that include requests for child support and other monetary relief, but do not raise custody issues, will not be subject to the subject matter jurisdictional requirements of the UCCJEA
In Nissen v. Cortez Moreno, Florida trial court found that it had subject matter jurisdiction over the father’s paternity action since the parties agreed that the mother shall retain custody of the minor child and no request for timesharing or visitation. Court was only dealing with child support and other monetary relief.
What type of jurisdiction does conceiving a child in FL triggers what
PERSONAL JUR NOT SMJ
What does UIFSA govern
Uniform Interstate Family Support Act
It governs enforcement and modification of support and child support orders issued in another state.
What is the purpose of UIFSA
It’s established in all 50 states and creates a national regime in which only one single support order is effective any given time.
Can Florida modify a foreign spousal support order
No, UIFSA says it can only enforce & may not modify a spousal support order issued by a tribunal of another state or foreign country having continuing, exclusive jurisdiction over that order.
When CAN FL modify a foreign child support order
if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state
When will a court decline to domesticate a foreign order
If a provision isn’t “support”
What are the 4 recognized writs that deal with family
- Mandamus
- Certiorari
- Prohibition
- Quo warranto
When can FL Supreme Court exercise jur by certiorari
When a lower tribunal exceeds its jurisdiction or
An Order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.
4 characteristics of review of certiorari
First, certiorari is available only where there is no adequate remedy at law.
Second, certiorari is entirely discretionary with the court, as opposed to an appeal which is taken as a matter of right.
Third, the scope of review by certiorari is traditionally limited and much narrower than the scope of review on appeal. On appeal, all errors below may be corrected, and judgments below may be modified, reversed, remanded with directions, or affirmed. Conversely, certiorari review is limited to “an inherent illegality or irregularity, an abuse of judicial power, [or] an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice
Finally, certiorari will only lie to review judicial or quasi-judicial action, never purely legislative action, in contradistinction to review by appeal which is provided by law and by which the legislature can authorize review of a wider scope
What’s an example of appropriate certiorari review?
“an erroneous order for genetic testing” because it “cannot be corrected through a direct appeal, for the improper genetic testing requiring a blood draw would have already been completed.”
ALSO
order finding that a foreign court, rather than a Florida court, had subject matter jurisdiction under the UCCJEA over a child custody matter was the proper subject of certiorari review.
ALSO
ordering a nonparty to produce documents
What is the standard of review for and order on a writ of certiorari
- Constitutes a departure from essential requirements of law
- Causes material injury for remainder of proceeding
- Causes irreparable injury and leaves to adequate remedy at law and cannot be corrected on postjudgment appeal
When is a writ of prohibition proper remedy
When it is necessary to prohibit the court from exceeding its jurisdiction or usurping the jurisdiction over matters not within its jurisdiction
What’s an example of when a court will issue writ of prohibition
writ of prohibition may be brought to prohibit a circuit court from further proceeding in a child custody action where subject matter jurisdiction is lacking under the UCCJEA.
Another example of a proper request for a writ of prohibition is where a court denied, as legally insufficient, an initial motion for disqualification of the trial judge
What is mandamus
Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law. The official’s legal duty must be “ministerial in nature and not discretionary
What is a ministerial duty
A ministerial duty is one which is “positively imposed by law to be performed at a time and in a manner or upon conditions which are specifically designated by the law itself absent any authorization of discretion.”
What must a party petitioning for a writ of mandamus establish
must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law
What is the procedure for writ of mandamus per family law rules of procedure
petition for writ of mandamus must “contain the facts on which the plaintiff relies for relief, a request for the relief sought, and, if desired, argument in support of the petition with citations of authority.” Further, “[i]f the complaint shows a prima facie case for relief, the court shall issue an alternative writ of mandamus.” “Once an alternative writ has issued, the burden is on the respondent to come forth with facts upon which it refused to perform its legal duty
What is an example of when a writ of mandamus is appropriate
Prisoner sought writ of mandamus ordering assistant public defender to disclose docs relative to conviction - trial court should have issued the writ since prisoner entitled to same by law
What is a writ of quo warranto
Proper remedy for asserting a challenge to a public official’s right to hold office; to contest the authority of a public officer to take certain actions in an official capacity.
If a party fails to timely appeal an FJ on grounds lack of SMJ, what is their recourse
12.540
What are the three types of jur court may have over a person
- quasi in rem
- in rem
- in personam
When can a spouses separate claim for interspousal action be brought in a DOM?
Judge has to determine if the claims involved marital or nonmarital property.
When does court have in personam jur
over persons within its territory
When does court have in rem jur
things within its territory
What is quasi in rem jur
A claim for money damages where court has no personal jurisdiction over defendant but has jurisdiction over a thing belonging to the defendant
In order to proceed with action, what is necessary in order for court to have quasi in rem jurisdiction
Quasi in rem jurisdiction can be obtained when a defendant is served by constructive service if there is property within the jurisdiction of the Court
In order for the court to exercise quasi in rem jurisdiction, what is necessary to satisfy the notice requirement
Both the notice of action and the petition for DOM which must specify that the action is directed against the property itself and describe the property specifically
