PRACTICE & PROCEDURE Flashcards
1
Q
What subject matter jurisdiction
A
Whether the court has the power to hear the specific kind of claim that is brought to that court
2
Q
How is SBJ conferred upon a court?
A
By constitution or by statute
3
Q
How does family court have SBJ over DOM
A
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.
4
Q
Who has the burden of proving that the court has SBJ to hear a DOM action
A
The petitioning party has the burden to provide either they have met the 6 month requirement of the other party has been
5
Q
What date is used for purposes of establishing residency for SBJ?
A
DOF
6
Q
What is the definition of a residence within the meaning on 61.021?
A
An actual physical presence in Florida coupled with an intent to remain here indefinitely
7
Q
Must a party be physically present in the State of FL for 6 months to establish residency?
A
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.
8
Q
What are signs or indicators of residence
A
- 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
9
Q
Can both parties testify as to residency requirement to satisfy burden?
A
No - it must be corroborated.
10
Q
What else is needed to meet burden of residency besides testimony
A
It must be corroborated by valid FL DL, FL voter card, valid FL ID or testimony of a 3rd party
11
Q
Can residency be established by agreement of the parties?
A
No - it can never be assumed. SBJ CANNOT BE WAIVED, ACQUIESED OR AGREED UPON
12
Q
What is the distinction between residence and domicile
A
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”
13
Q
Are military spouses deemed FL residences while living here?
A
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
14
Q
Can a foreign citizen without permanent residency status satisfy 61.021 in order to file DOM in FL
A
Yes - so long a they are present in FL with the requisite intent - even if they are subject to deportation
15
Q
What happens to a foreigners residency status if they are deported
A
They lose their domicile at that point
16
Q
What happens to FJ and Orders that are entered without SMJ
A
VOID AB INITIO (from the beginning)
17
Q
What is the impact of death of a spouse
A
It terminates the marriage by operation of law
18
Q
What types of divorces can COUNTY courts hear
A
simplified DOM or final order in an uncontested DOM
19
Q
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?
A
NO SMJ
20
Q
What happens if a party dies before entry of FJ
A
Court lacks SBJ to enter one BUT it retains jurisdiction over child.
21
Q
How could a court retain SBJ even in the event of death
A
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.
22
Q
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
A
It can be completed since the appeal concerned collateral issues not issues at to the DOM itself.
23
Q
Does court retain SMJ to address motion for attorney’s fees and cost in the event of death of spouse?
A
Yes, if motion filed before death of a party.
24
Q
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?
A
The court may set aside the final judgment and determine the issues as if the parties were living.
25
when should could consider bifurcation
Under exceptional circumstances when it's for best interest of parties or their children
26
What is considered an exceptional circumstance for purposes of a bifurcation?
Impending death or terminal illness of a party
27
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
28
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
29
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.
30
Does court have to specifically reserve jur to modify amounts or duration?
No - court's have jur per 61.14
31
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
32
Can court amend a FJ to include reservation for fees?
NO - IT HAS NO JURISDICTION TO DO SO
33
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
34
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.
35
What is the standard of review on appeal for a MTD for lack of residency
abuse of discretion
36
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
37
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
38
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.
39
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
40
Can a foreign refugee meet residency requirements
Foreign refugees may also be considered Florida residents for jurisdictional purposes under section 61.021.
41
Can a foreign refugee meet residency requirements if they under an order for deportation?
Yes- residency is only lost upon deportation
42
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.
43
Can trial court address a deceased spouse’s request for pre-death attorney’s fees under section 61.16?
Yes
44
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.
45
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
46
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.
47
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
48
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
49
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
50
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.
51
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
52
What is one subject court does not have to expressly reserv jur to modi?
Children's issues
53
How is SBJ determined over child custody matters
Uniform Child Custody Jurisdiction & Enforcement Act,
54
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.”
55
what is the critical issue in deciding if FL has jur over child
whether FL is child's home state
56
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
57
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.
58
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.
59
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.
60
What is the purpose behind the creation of UCCJEA
1. Avoid jurisdiction conflict so kids aren't dragged state to state.
2. Discourage interstate controversies
3. Promote courts to cooperate so child custody is resolved in right state
4. Deter abductions
5. Facilitate enforcement
6. Avoid relitigating
7. Promote communication bw states
8. Uniformity
61
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.
62
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
63
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.
64
What type of jurisdiction does conceiving a child in FL triggers what
PERSONAL JUR NOT SMJ
65
What does UIFSA govern
Uniform Interstate Family Support Act
It governs enforcement and modification of support and child support orders issued in another state.
66
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.
67
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.
68
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
69
When will a court decline to domesticate a foreign order
If a provision isn't "support"
70
What are the 4 recognized writs that deal with family
1. Mandamus
2. Certiorari
3. Prohibition
4. Quo warranto
71
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.
72
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
73
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
74
What is the standard of review for and order on a writ of certiorari
1. Constitutes a departure from essential requirements of law
2. Causes material injury for remainder of proceeding
3. Causes irreparable injury and leaves to adequate remedy at law and cannot be corrected on postjudgment appeal
75
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
76
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
77
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
78
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.”
79
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
80
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
81
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
82
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.
83
If a party fails to timely appeal an FJ on grounds lack of SMJ, what is their recourse
12.540
84
What are the three types of jur court may have over a person
1. quasi in rem
2. in rem
3. in personam
85
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.
86
When does court have in personam jur
over persons within its territory
87
When does court have in rem jur
things within its territory
88
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
89
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
90
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
91
What is in rem jurisdiction
An action which seeks to affect interests of persona in a specific THING (foreclose, quite title, partition, divorce)
92
What is needed in order for court to have in rem jurisdiction?
There must be property located within FL and constructive service is used which identifies the property in FL
93
In a DOM if the court has in rem jurisdiction based on constructive service but it doesn't have personal jurisdiction over the respondent what are its limitations in the DOM?
It cannot award support, alimony, and attorney's fees HOWEVER some districts say court can award support, alimony and fees it just cannot determine the amount or order payment since the award is limited to property in jurisdiction - therefore, later attempts to enforce must be made against R's property located within court's jur
94
What can FL court do if it has quasi in rem and in rem jur in DOM
may dissolve the parties’ marriage, dispose of the real property at issue in Florida, and award child custody if there is jurisdiction under the UCCJEA; that trial court may not, however, award child support, alimony, or attorney’s fees.
95
What is personal jurisdiction?
The court's jurisdiction over a PERSON
96
How can in personam jur be acquired
1. Being a FL residence
2. Consenting
3. Long arm statute
4. Personally served in FL but it cannot be obtained by fraud or trick, and not to appear in court on an unrelated matter
5. Substitute service in FL (someone other than R at their home who is 15 or older)
97
How can a nonresident submit themselves to personal jurisdiction in FL via long arm statute
Nonresident or his agent:
1. Does business in FL
2. Commit a tort in FL
3. Contracting to insure a person, property, or risk located within this state at the time of contracting
4. With respect to a DOM action, Respondent lived in FL before action filed whether living with spouse or not (still need to satisfy residence requirement for SBJ)
5. Causing injury to persons or property in FL by an act or omission by Respondent IF
-Respondent engaged in solicitation or service activities within this state; or
-Products, materials, or things processed, serviced, or manufactured by the Respondent anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
6. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state
7. With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.
8. Enters into K with choice of law provision
OR
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
98
What is the 2 prong test to determine if a party sufficiently plead in personam jur under long arm statute
1. The complaint must allege sufficient facts as to bring the action within the reach of the long-arm statute
2. If the complaint does allege sufficient facts, the defendant must have sufficient minimum contacts with the state to satisfy constitutional due process requirements
99
What are the two primary ways in which long arm statute is used to obtain personal jurisdiction in a family law action?
(1) Respondent lived in FL before action filed whether living with spouse or not (still need to satisfy residence requirement for SBJ)
(2) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived
100
To prove that FL was the parties' matrimonial domicile for purposes of personal jurisdiction via long arm, what must be proven
That the parties lived in FL "proximately preceding" the commencement of the action.
101
The parties lived together as husband and wife in FL but husband moved throughout the marriage due to his job and only visited Florida for 2 weeks each year for Christmas. Can FL assert personal jurisdiction over the Husband in a DOM action?
Yes, Florida was the matrimonial domicile as it was the only state H and W lived actually and constructively.
102
What type of analysis must the Court engage in to determine if the parties' matrimonial domicile was FL proximately preceding the action?
Court must examine the "totality of the circumstances" to determine if the parties maintained a matrimonial domicile in FL at the time the action commenced
103
Is personal jurisdiction over an out of state parent necessary to initiate a custody action?
No - all that is needed for a custody action is subject matter jurisdiction.
104
Does long arm statute apply for a failure to pay child support?
It can but NOT until the duty has been imposed. Failure to pay support cannot be used as a basis for long arm statute over a putative father who has not been adjudicated F yet and who has not been ordered to pay CS yet.
105
Can owning real property in FL confer personal jurisdiction?
YES but only with respect to partition of that property per DOM it does not confer personal jur to address alimony and ED
106
Parties entered into MSA in NY and H has to pay W alimony. W moves to FL and H stops paying. Can FL obtain personal jurisdiction over H to enforce failure to pay ?
No - failure to make a contractual payment due in NY doesn't impliedly mean H consented to personal jur in another state.
107
Procedurally, how can a party contest personal jur
Must object in responsive pleading of by MTD
108
Does Respondent waive objection to personal jurisdiction if he files a responsive pleading attacking personal jurisdiction but also requests affirmative relief such as DNA test?
Yes - cannot seek affirmative relief. Can only take defensive measures:
-request fees for asserting defense against personal jur
-RFP related to personal jur
-Can answer petition and raise defense
-Can make limited appearance for TS without waiving obj to personal jur for financial issues
109
Father admits to paternity in open court - does this submit him to personal jurisdiction of that court?
Yes
110
If a settlement agreement states that is may be incorporated into a judgment of any court of competent jurisdiction, is that sufficient to obtain personal jurisdiction over H who has no contacts with FL?
Yes
111
When can a third party in an action be added to an action?
When they can demonstrate that they have a material interest in property rights which may be affected by adjudication
112
When should a corporation be joined to a DOM
Joinder is proper where a party’s intimacy with the corporation makes the other party’s actions against them inextricably intertwined.
"When party is the alter ego of the corporation and the business and personal matters are inextricably intertwined"
113
When can a court appoint a receiver or an attorney for a corporation?
Only if the corporation is joined as a party to the action.
114
Can an irrevocable trust by added as a 3rd party to DOM
No
115
What is the general rule concerning grandparents having standing in child custody dispute
Generally, grandparents do not have standing to request visitation with or custody over their grandchildren absent an emergency or unfitness of the parents
116
When can an extended family member seek temporary or concurrent custody of a child
If temporary custody is being requested, the petition must include statements regarding either “the consent of the child’s parents, or the specific acts or omissions of the parents which demonstrate that the parents have abused, abandoned, or neglected the child
117
Must FL give full faith and credit to a foreign order giving grandparent visitation
Yes but it can subsequently be modified under FL law since it's unconstitutional.
118
Can a FJ based on constructive service of process validly dispose of issues related to parties' property in FL?
Yes, so long as the issues were properly raised in the action and the court had jurisdiction to hear it.
Constructive service by publication must describe in the petition the property and the notice the property to be disposed of.
119
What must be plead in a partition action?
1. Name & residence of all persons interested in the property
2. Quantity of interest held by each spouse
3. Whether the property is divisible
THE PETITION & NOTICE OF CONSTRUCTIVE SERVICE MUST INCLUDE INFO IN ORDER FOR COURT TO HAVE PERSONAL JUR TO DISPOSE OF PROPERTY
120
Can court order partition of jointly held real property in DOM if neither party plead for it?
NO
121
In an action for separate maintenance, can the court address property issues?
No BUT it may award one spouse exclusive use and possession of marital residence if it is jointly owned by parties and the order doesn't affect title to property
122
How can a child age under 18 seek to petition court for emancipation?
petition must include, inter alia, a statement of the child’s “character, habits, education, income, and mental capacity for business, and an explanation of how the needs of the minor with respect to food, shelter, clothing, medical care, and other necessities will be met.” Id. at (2)(d). The standard for granting the petition is whether the “removal of the disabilities of nonage is in the minor’s best interest
123
What's the standard for court to approve a petition for emancipation of a minor
whether the “removal of the disabilities of nonage is in the minor’s best interest
124
When will a court consider a biological father's standing in face of a child born in wedlock when H objects?
biological father has standing to rebut the presumption of legitimacy when he has “‘manifested a substantial and continuing concern’ for the welfare of the child.
The presumption is overcome when there is a clear and compelling reason based primarily on the child’s best interests
125
What is the appellate standard of review for whether putative father has standing the challenge paternity?
De novo since it's a question of law
126
What must the court do if it's going to order genetic testing for a putative father of a child otherwise born legitimately during intact marriage
the trial court is required to appoint a guardian ad litem to represent the child. This is because “[o]nce children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests
127
What is the burden of the party seeking genetic testing
(i) the complaint is apparently accurate factually, is brought in good faith, and is likely to be supported by reliable evidence, and
(ii) the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy.
128
Although there is a presumption in favor of a child's legitimacy, when can it NOT be rebutted?
(1) presumption of legitimacy may not be rebutted when res judicata applies because a prior judgment determined the child’s parentage—even if this determination was factually inaccurate because it was based solely on the presumption of legitimacy rather than scientific evidence
(2) legal father may be equitably estopped from denying parentage, even for a child that is not biologically his own
129
What is one of the required findings in order for court to disestablish paternity
One of the required findings that a court must make in order to disestablish paternity is that “newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.”
130
How does the 1st DCA handle the issue of "newly discovered evidence" if it is later learned that father is not bio dad by way of dna test?
The First District Court of Appeal has held that DNA test results showing petitioner is not the biological father will not constitute “newly discovered evidence” for purposes of disestablishing paternity of the child where the petitioner was fully aware of the possibility of his non-paternity yet chose not to undergo DNA testing before paternity was established
131
How does the 2nd DCA handle the issue of "newly discovered evidence" if it is later learned that father is not bio dad by way of dna test?
DNA test results which indicate the petitioner’s non-paternity satisfy the “newly discovered evidence” requirement, even if there is evidence that the petitioner had reason to question paternity at the time of the initial paternity determination.
132
What is service of process?
The delivery or other communication of a summons and the complaint - this gives the court jurisdiction to adjudicate the matters in controversy.
133
What is the difference between process and service
Process is the summons and the complaint
Service is the delivery of same
134
What must a summons in family action include
Summons shall specifically contain the following language: WARNING: Rule 12.285, Florida Family Law Rules of Procedure, requires certain automatic disclosure of documents and information. Failure to comply can result in sanctions, including dismissal or striking of pleadings.”
Fla. Fam. L.R.P. 12.070(b).
135
What are the different ways in which service of process can be made
Personal service, substitute service, constructive service, or waiver of formal service by other party
136
Who can effectuate service
An officer authorized by law to serve process
or
The court may appoint any competent person not interested in the action to serve the process but they have to file an affidavit when person is served
137
Are employers required to accept service of an employee?
Yes, in a designated private area.
138
In a DOM action when can service be made on Sunday
if the person requesting service or execution signs an affidavit stating that “good reason” exists to believe that the person to be served “intends to escape from this state under protection of Sunday.” Id. In such cases, the trial court may issue an order authorizing service or execution on Sunday, and same will be “valid as if it had been done on any other day.”
139
What is the general time limit to effectuate service
120 days after filing of the initial pleading directed to that defendant.
140
When can the 120 days to effectuate service be extended
if this deadline is not met and good cause or excusable neglect for the failure is shown, “the court shall extend the time for service for an appropriate period
141
What may court do if service not effectuated in 120 days and there is no excusable neglect
“the court, on its own initiative after notice or on motion,” retains discretion to:
(i) extend the period for service;
(ii) dismiss the action without prejudice; or
(iii) drop that defendant as a party.” Id. Note that “an order denying a motion to dismiss which is based on untimely service is not an order which determines jurisdiction of the person and therefore is not an order which is directly appealable.”
142
If a party files a MTD based on untimely service, can they appeal that order?
No - it doesn't fall within appealable nonfinal orders under 9.130 bc the order does not determine jurisdiction over the person.
143
How is service made on a corporation (domestic or foreign)?
1. President or VP
2. Cashier, treasurer or secretary or GM
3. any director
4. officer or business agent residing in the state
5. if foreign corp with non of above, then any agent in state transacting business for it in state
6. OR as an alternative to all the above - Registered agent
7. if no RA, then any employee at principal place of business
144
How is service made on a dissolved corporation?
On any one of the officers
145
How is service generally made
Deliver summons and complaint to person's usual place of abode OR anyone who lives there who is 15 or older and informing person of contents
146
How can service be made on married minors?
Directly - as they are served as adults.
147
How can service be made on un married minors??
Serve a parent, legal guardian or GAL
148
How is service made on an incompetent person
Serving two copies of summons and complaint on legal guardian, guardian ad litem or person who cares for incompetent persons
149
How is service made on a state prisoner
Must be served in prison
150
How is service perfected on a non-resident and what is the effect if done in FL?
They are served within FL when they are here voluntarily - this will confer PERSONAL JURISDICTION
151
What is the effect of service made on Sunday?
It's void & the person who served it can be liable for damages for abusive process
EXCEPTION
Where there is an order from court permitting service on Sunday. Petitioning party must file affidavit requesting service or execution on Sunday stating they have good reason to believe that the person intends to escape FL on Sunday
152
What are the three ways to do substitute service
1. In post DOM -if party is remarried, can serve new spouse at any place in county so long as that spouse lives with the party
2. Can be made on person doing business at place of business during regular business hours be serving manager IF more 1 or more attempts made to serve owner have been attempted at business
3. Usual place of above on a person 15 or older if they live with party (service of roommate in parking garage fails bc not usual place of abode)
153
When types of action can service be made be made by constructive service
i) to partition real or personal property;
(ii) for dissolution or annulment of marriage;
(iii) for adoption;
(iv) for termination of parental rights pursuant to either chapter 39 or chapter 63;
(v) for temporary custody of a minor child under chapter 751; and
(vi) to determine paternity, but only as to the legal father in a paternity action in which another man is alleged to be the biological father (and, as of January 1, 2023, over a legal mother when there is no legal father
154
If a party is intentionally avoiding service, can petitioner ignore technical requirements of service?
No
155
Can substitute service be made on a temporary visitor residence?
No
156
When is drop service permitted
When person is avoiding service - service will be deemed complete upon leaving it on door step or mailbox in such case.
157
What is a condition precedent to service by publication
The party attempting to effect service must file an affidavit
158
What must affidavit include for publication by service
That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and
* Whether such person is over or under the age of 18 years, if his or her age is known, or that the person’s age is unknown; and
* In addition to the above, that the residence of such person is, either: Unknown to the affiant; or o In some state or country other than this state, stating said residence if known; or o In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.
159
If constructive service is disputed, what are the two things trial court must determined
1. If the affidavit of diligent search is legally sufficient.
2. Whether the plaintiff conducted an adequate search to locate the defendant.
160
What is sufficient to making a finding that a diligent search was conducted
The affidavit need only allege that a diligent search and inquiry was made, and need not include specific supporting facts.
161
What is the test as to whether or not plaintiff conducted an adequate search to locate the defendant
The test is not whether it was in fact possible to effect personal service, but whether the evidence shows that the plaintiff “reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.
162
Do you effectuate constructive service by publication by publication
Notice of action must be published “once during each week for 4 consecutive weeks (four publications being sufficient) in some newspaper published in the county where the court is located
163
What if there is no newspaper in the county
Then “three copies of the notice shall be posted at least 28 days before the return day thereof in three different and conspicuous places in such county, one of which shall be at the front door of the courthouse in said county.”
164
How should service in DOM be effectuated when one of the parties is mentally incapacitated
61.052(1)(b)
Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues. If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party. If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party.
165
What has the Florida Supreme Court indicated is the two-prong test to determine whether long arm jurisdiction is proper under the long arm statute
First, determine if complaint alleges sufficient jurisdiction facts to bring the action within the long arm statute then conduct an inquiry whether sufficient minimum contacts are demonstrated to satisfy due process requirements.
166
What is venue for purposes of a DOM action
cause of action accrues in the last county where the parties resided as husband and wife with the common intent to remain married
167
When will minimum contact inquiry be satisfied for a proceeding for alimony, child support or division of property in connection with DOM or a separate action for support?
If parties maintained a matrimonial domicile in FL at the time action commenced OR Respondent lived in FL before action (even if not living with party)
168
When is constructive service by publication permitted in family law proceedings?
1. DOM - court can obtain personal jurisdiction to dissolve marriage via constructive service but no financial relief but if it is constructive service and the notice of action includes description of personal or real property, court can deal with that
2. Annulment
3. Adoption
4. Permanent TPR
5. Temporary custody of a minor child
6. Paternity - but only as to legal father in a paternity action in which another man alleges to be bio dad - in which case it is necessary to serve process on legal father in order to establish paternity with regard to bio dad
169
When can service by publication be used?
Only when personal service of process cannot be effected
170
Process can be serviced constructively by publication under which circumstances
1. R is a nonresident (if you are unable to obtain service)
2. R's residence is unknown
3. R is FL resident but has been absent for 60 days before P made sworn statement required for constructive service
4. R conceals himself so personal service or substitute service cannot be made
171
What must a petitioner do before resorting to constructive service by publication
Sworn statement stating that P/lawyer reasonably used their knowledge, made diligent inquiry and exerted and honest and conscientious effort appropriate to circumstances to obtain info necessary to personally serve R
If R is over 18 or if his age is unknown
AND
R's residence is unknown OR R is in another State or county but the residence is unknown OR R lives in FL but has been absent for 60 days OR conceals himself so that service cannot be made
172
Does the fact that a respondent may have received actual notice of a proceeding sufficient to establish service by publication?
No
173
What happens to a judgment that is obtained by way of a fraudulent service be publication?
It can be set aside
174
Can a motion to set aside a judgment based on a perjured affidavit for service of publication be heard more than one year after the judgment?
YES - since it is a violation of due process and the court therefore never acquired jurisdiction over the respondent
175
What is the test for adequacy as to whether a diligent search and inquiry has been made?
Whether complainant reasonably employed knowledge at his command in making the search
176
If the allegations in a sworn petition for divorce state all of the allegations necessary for the sworn statement for constructive service, the affidavit of diligent search is facially sufficient to support constructive service. HOWEVER, the judgment rendered pursuant to such service may be voidable if the affected party claims that an actual diligent search was not made. Who bears the burden at this point?
Petitioner has burden to prove an adequate search was conducted.
177
After filing a sworn statement, petitioner is entitled to have clerk or judge issue a notice of action, which must include what information
1. Name of R
2. Nature of action
3. Name of court where action taking place
4. Description of real property if any
178
After notice of action via constructive service by publication, how much time does R have to answer?
28 days to answer & service and no more than 60 days after 1st publication and notice
179
When is constructive service not permitted in a paternity action?
A paternity action upon a father who is NOT the child's legal father.
180
For purposes of constructive service, if a legal father cannot be located, where shall the constructive service by publication take place
County where the legal father was last known to have resided - clerk shall mail notice to father's last known address.
181
What is required for constructive service where Respondent is in the military
Must list whether R is in active duty or not in active duty or if it is unknown and all efforts made to determine the military status of the respondent. (active duty is more than 30 days)
182
Does chapter 61 require parties to be resident of FL for a support unconnected with divorce action?
No - court's have subject matter jurisdiction IF there is a basis for personal jurisdiction over R when petition if filed even if neither party meets 6 month requirement
183
Where is proper venue for an action for support unconnected with divorce
In the county were P or minor child are physically present and refused support by other spouse.
184
If the last place where the parties lived with the intent to remain married was out of state, where is proper venue?
where the defendant resided at the time of filing the petition for dissolution (petitioner must still satisfy residency requirement)
185
Where is proper venue for establishing a foreign decree
the only applicable venue is in
42 the county where the respondent resides.
186
Where is proper venue in a modification of child support, maintenance or alimony?
in the “circuit court of the circuit in which the parties,
or either of them, resided at the date of the execution of the agreement or
reside at the date of the application, or
in which the agreement was executed or in which the order was rendered.”
187
If P obtains service over military R via long arm, what is a concern to be aware of?
IF court had jurisdiction over federal pension.
188
If equitable distribution of a military pension is sought, what is needed
Personal jurisdiction over service member based on residence other than military assignment - must be based on domicile or obtained by consent to participate in the litigation.
189
What is venue?
Venue designates the particular COUNTY in FL in which a court with jurisdiction may hear and determine the case. Determines the LOCATION of the suit.
190
What is the general venue statute?
47.011 - in general, an action shall be brought
1. Where R resides
2. Where action accrued
3. Where property in litigation is located
191
Where is proper venue to modify a PP
1. County in which either party resides WITH the child
2. County where original order entered
192
Where is proper venue for modification of support
1. Where either party lives
2. County where original order entered
3. Where agreement was executed
4. Where either party resided at the time agreement was executed
193
Where is proper venue for enforcement of support
1. Where payee resides
2. Where payor resides
3. Where judgment was entered
194
What happens if one party files an enforcement in a proper venue and then other party subsequently files a modification action in another venue. Can the mod case have enforcement case transferred?
The court where the subsequent modification petition was filed should dismiss same
195
When does a foreign court loses its continuing and exclusive jurisdiction concerning a child support order under UIFSA
When neither the child nor any party continue to reside in the issuing state OR when all parties file written consent with issuing court to allow another state to assume continuing and exclusive jurisdiction despite parties' state of residence
196
Where is proper venue to domesticate a foreign judgment?
1. County where R lives
2. County where cause of action accrued
3. Where property in litigation is located
197
What is the burden of proof for venue
The party filing the action initially selects venue, but need not plead or prove that his selection is proper. The venue a party chooses is presumptively correct
The burden lies on the party who seeks a change of venue to demonstrate the impropriety of the venue selection
198
What is the proper remedy for improper venue
transfer it to proper county - not dismissal
199
Where is proper venue for a paternity action
1. Where P resides
2. Where R resides
200
Who has the burden of proof as to venue?
Petitioner has no obligation to prove venue is proper. The burden is on R who claims venue is IMPROPER.
201
What must R prove if he says venue is improper
1. Must prove R's venue is proper AND P's venue is improper
202
What is venue is proper in more than 1 county
P has the right to select the appropriate county and it would be improper to transfer venue to another county even if that county is also appropriate
203
If venue is proper in more than 1 county, how could R try to obtain a change in venue
Prove that current venue is an inconvenient forum
204
What is the proper remedy if court determines there is more convenient forum?
To transfer the case not dismissal.
205
What happens if court determined that venue is incorrect and should be transferred?
P has to pay filing fees to transfer within 30 days BUT if change of venue is for forum inconvenience or inability to receive a fair trial, party requesting transfer must pay the transfer fees
206
How does R raise defense to improper venue
1. motion to transfer
2. motion to abate for improper venue
3. raising it in answer
207
Is an evidentiary hearing required for a venue challenge?
Yes unless it is evidence on the fact of the petition that the venue is improper
208
Can a grant or denial of venue be appealed?
Yes but not until the court file has been received by the transferee court and the applicable cost have been paid
209
If both parties file for divorce in different counties, which county has jurisdiction?
The county that exercises jurisdiction first - jurisdiction attaches when the summons is served.
210
What is it called when an issue is not raised by pleading but tried when a party is absent?
This not trying the issue by consent but in abstentia
211
What are affirmative defenses
A defense which admits the cause of action but avoids liability by alleging an excuse, justification or other matter negating or limiting liability
212
What are affirmative defenses that may be asserted
(a) Accord & satisfaction
(b) Arbitration and award
(c) Assumption of risk
(d) Contributory negligence
(e) Discharge in bankruptcy
(f) Duress
(g) Estoppel
(h) Failure of consideration
(i) Fraud
(j) Illegality
(k) Injury by Fellow Servant
(l) Laches
(m) License
(n) Payment
(o) Release
(p) Res Judicata
(q) Statute of Frauds
(r) Statute of Limitations
(s) Waiver
213
What is required when pleading an affirmative defnese
All elements of the defense must be alleged and if defense is based on an instrument - must be attached.
214
What happens if you don't raise affirmative defense
It's waived unless the basis is clear from face of complaint or one statutorily specific as one that can be raised by motion.
215
What are the two grounds for dissolution?
1. Marriage is irretrievably broken OR
2. Mental incapacity of other party
216
What happens if mental incapacity is alleged in the initial pleading?
the party alleged to be incapacitated must have been adjudicated incapacitated for a period of at least 3 years before divorce allowed
217
Is it necessary to plead for fees?
YES and if you fail to plead for it, you cannot be awarded for hours worked during a period for which no request for fees was made.
218
What must every petition for child support or modification of cs include?
FA at the same time petition served.
R must provide his FA no least than 72 hours before any financial hearing
219
What is the purposes of a lis pendens
To put a third party on notice that a claim is made to the real or personal property titled in the name of a party in the action
220
What should lis pendens include
Adequate detail of the property and the relief sought and must be duly recorded
221
What is required if court appoints a receiver
The party has a legal right or ownership interest in the property and both receiver and movant must generally post a bond.
222
What is sequestration
Another form of equitable relief - if the proceeding is in rem against the property of a party who is no in FL or can't be located. Court can consider sequestration for purpose of discharging support obligation arrears
223
Can court sequester property a nonparty?
No unless the non-party is joined as a party to the action.
224
When must a DOM be verified
1. When custody allegations for UCCJEA are placed into the pleading
2. When temporary injunction or other emergency relief is sought without notice
225
When can the court enter a default FJ
When opposing party fails to file a responsible pleading within time required and default entered by clerk
226
When may the court not enter a default judgment without notice
If an opposing party filed any paper whatsoever, then the party must be served with a notice of application for default. Failure to do so will subject the FJ to being set aside
227
What basis can a default judgment be set aside?
Pursuant to 12.540 for excusable neglect coupled with meritorious defense and exercise of diligence can be demonstrated
