KENNEDY v. KENNEDY

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Docket Number

No. 89-2091.

Attorney(S)

Mark R. Hall of Bolt Spence, P.A., New Smyrna Beach, for appellant. Blaine Kennedy, William D. Kennedy, and Mary Ann Kennedy, Appellees, Holly Hill, in pro per.

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Smart Summary

Factual and Procedural Background

Debra G. Kennedy appeals from a non-final order denying her motion to dismiss her husband Blaine Kennedy's petition for custody of their infant son, Chad. The custody proceeding was not initiated under the typical dissolution of marriage statutes (Chapter 61) nor as a dependency proceeding (Chapter 39). The trial court, on its own motion, granted temporary custody to Blaine. The child was born in January 1988 and lived with both parents in Georgia until February 1989, then solely with Debra until August 6, 1989. Blaine and his uncle William Kennedy removed the child to Florida without Debra's knowledge and shortly thereafter filed a petition seeking custody for William and Mary Ann Kennedy, Blaine’s aunt and uncle, alleging Debra's unfitness. Blaine purported to relinquish his custodial rights to William and Mary Ann via a "Consent for Custody" document. The lower court entertained the petition and granted temporary custody to Blaine, prompting this appeal.

Legal Issues Presented

Whether the trial court had subject matter jurisdiction to entertain the custody petition filed by Blaine and third parties (William and Mary Ann Kennedy) under Florida law and the Uniform Child Custody Jurisdiction Act (UCCJA).
Whether the custody proceeding should have been brought as a Chapter 39 dependency proceeding given the involvement of third parties seeking custody against a parent.
Whether the trial court properly granted temporary custody to Blaine without issuing a protective order preserving the status quo in an emergency.
Whether the appellate court has jurisdiction to review the non-final order denying the motion to dismiss.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Connor v. O'Connor, 447 So.2d 1034 (Fla. 4th DCA 1984)	Limits appellate jurisdiction to review certain non-final orders.	Recognized that the order denying dismissal was not ordinarily reviewable, but the court elected to treat the appeal as a petition for writ of certiorari due to material harm and departure from essential requirements of law.
In re J.S., 404 So.2d 1144 (Fla. 5th DCA 1981), dismissed 412 So.2d 467 (Fla. 1982)	Standards for granting writ of certiorari based on material harm and departure from essential requirements of law.	Used as authority to justify issuance of the writ given the harm to appellant and jurisdictional errors.
Schilling v. Wood, 532 So.2d 12 (Fla. 4th DCA 1988)	Third parties may not initiate custody proceedings against a parent except through a Chapter 39 dependency proceeding.	Applied to conclude that the petition should have been brought as a dependency proceeding since it sought custody from a parent.
Johnson v. Denton, 542 So.2d 447 (Fla. 5th DCA 1989)	Applicability of the Uniform Child Custody Jurisdiction Act (UCCJA) to both Chapter 61 and Chapter 39 proceedings.	Supported the court’s analysis that jurisdiction under UCCJA was lacking.
Nussbaumer v. Nussbaumer, 442 So.2d 1094 (Fla. 5th DCA 1983)	Florida courts have jurisdiction under parens patriae to issue temporary protective orders in emergencies to preserve the status quo.	Distinguished the temporary custody order here as improper because it was not a temporary protective order preserving status quo pending proper jurisdiction.
Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983)	Limits on jurisdiction to make permanent custody determinations absent proper jurisdictional basis.	Supported the conclusion that Florida lacked jurisdiction to make a permanent custody decree.
Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980)	Jurisdictional requirements for custody orders under UCCJA.	Reinforced the lack of jurisdiction to issue custody orders absent statutory prerequisites.

Court's Reasoning and Analysis

The court first noted that the appeal was from a non-final order denying a motion to dismiss for lack of jurisdiction, which is not ordinarily reviewable. Nonetheless, the court treated the appeal as a petition for writ of certiorari due to the material harm to the appellant and a clear departure from essential requirements of law.

The court examined the procedural posture and found that the custody petition was not brought under the proper statutory framework. Third parties such as William and Mary Ann Kennedy cannot initiate custody proceedings against a parent outside of a Chapter 39 dependency proceeding. Since Blaine sought no relief other than awarding custody to third parties based on Debra's alleged unfitness, the petition was improperly filed.

Regarding subject matter jurisdiction, the court applied the Uniform Child Custody Jurisdiction Act (UCCJA), codified in Florida Statutes section 61.1308, to determine whether Florida courts had authority to decide custody. The child’s home state was Georgia, where he lived for the six months preceding the filing. The court found no significant connection between the child and Florida, and no emergency circumstances justifying jurisdiction.

The court emphasized that although Florida courts may issue temporary protective orders under the parens patriae doctrine in emergencies to preserve the status quo, the trial court here improperly granted temporary custody pending a final custody determination without issuing such a protective order.

Because the trial court lacked jurisdiction and improperly awarded custody, the appellate court quashed the order denying dismissal and the temporary custody award, directing dismissal of the petition and issuance of a protective order if an emergency exists to allow proper proceedings in Georgia.

Holding and Implications

The order denying the motion to dismiss and the temporary custody award are quashed.

The court directed the trial court to dismiss the appellees' custody petition for lack of subject matter jurisdiction. It further ordered that, if an emergency exists, a temporary protective order preserving the status quo be issued only for the limited time necessary to enable proper custody proceedings to be filed in Georgia. The decision directly affects the parties by restoring jurisdictional propriety and protecting the appellant’s custody rights pending proper adjudication. No new precedent was established beyond application of existing jurisdictional principles and procedural rules.

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DEBRA G. KENNEDY, APPELLANT, v. BLAINE KENNEDY, ET AL., APPELLEES.

W. SHARP, Judge.

Debra Kennedy appeals from a non-final order which denied her motion to dismiss her husband's (Blaine Kennedy's) petition for award of custody of their infant son, Chad, filed in the circuit court. This proceeding was not commenced as a dissolution petition pursuant to Chapter 61, nor was it a dependency suit filed pursuant to Chapter 39. The non-final order sua sponte granted temporary custody of the child to Blaine.

Debra addresses only the refusal of the trial judge to grant her motion to dismiss for lack of jurisdiction. This is not a type of non-final order we have jurisdiction to review. O'Connor v. O'Connor, 447 So.2d 1034 (Fla. 4th DCA 1984). However, we elect to treat this cause as a petition for writ of certiorari, and we grant issuance of the writ because we find material harm to the appellant which cannot be adequately remedied by an appeal, and because we find the trial court departed from the essential requirements of law. See In re J.S., 404 So.2d 1144 (Fla. 5th DCA 1981), dismissed, 412 So.2d 467 (Fla. 1982).

Debra and Blaine are married and are the parents of Chad, who was born on January 3, 1988. The child lived in Georgia with his mother and father from the time of his birth until February 1989, and then with his mother in Georgia until August 6, 1989, three days before the petition was filed. Apparently because of concern for the child's care, Blaine and his uncle, William Kennedy, went to Georgia and brought the child to Florida without Debra's knowledge.

Three days after removing the child to Florida, Blaine, William, and William's wife, Mary Ann, filed the instant action. The petition seeks no other remedy than the award of custody to William and Mary Ann Kennedy and, in essence, attempts to show that Debra is unfit to have custody of the child. Attached to the petition is a document entitled "Consent for Custody" wherein Blaine purports to relinquish his custodial rights to William and Mary Ann Kennedy.

It is alleged that appellees Mary Ann and William Kennedy are Blaine's aunt and uncle and the child's great aunt and great uncle.

In entertaining appellees' petition, the lower court departed from the essential requirements of the law. Third parties such as William and Mary Ann may not initiate a custody proceeding against a child's parent unless it is brought as a Chapter 39 dependency proceeding. Schilling v. Wood, 532 So.2d 12 (Fla. 4th DCA 1988). Since Blaine sought no relief other than an order giving custody to William and Mary Ann Kennedy based on Debra's alleged unfitness, his suit should also have been brought as a Chapter 39 dependency proceeding.

Further, the court clearly did not have subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act to make a custody determination. The subject matter jurisdiction of courts in this state to make custody determinations is set forth in section 61.1308, Florida Statutes:

The provisions of the UCCJA apply to both Chapter 61 and Chapter 39 proceedings. Johnson v. Denton, 542 So.2d 447 (Fla. 5th DCA 1989).

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(a) This state:

1. Is the home state of the child at the time of commencement of the proceeding, or

2. Had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

(b) It is in the best interest of the child that a court of this state assume jurisdiction because:

1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and

2. There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

(c) The child is physically present in this state and:

1. The child has been abandoned, or

2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.

(d)1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and

2. It is in the best interest of the child that a court of this state assume jurisdiction.

Florida does not have jurisdiction under subsection (a). Since the child resided in Georgia for the six months immediately preceding the filing of the action, Georgia is the home state of the child. Subsection (b) does not provide Florida with jurisdiction because there is no showing that the child has any connection with Florida, much less a significant connection. The mere fact that the father and some paternal relatives live in Florida is not sufficient to show that the child has a significant connection with this state. Subsection (d) does not provide jurisdiction because it is clear that a Georgia court would have jurisdiction.

Finally, the court did not have jurisdiction to entertain appellees' petition under subsection (c). The record does not support a finding that the child has been abandoned. Even if the appellees' allegations were sufficient to show that the child would be subject to abuse or neglect if returned to Georgia, the Florida court lacked jurisdiction to make a permanent custody decree. Nussbaumer v. Nussbaumer, 442 So.2d 1094 (Fla. 5th DCA 1983); Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983); Hegler v. Hegler 383 So.2d 1134 (Fla. 5th DCA 1980). However, a Florida court does have jurisdiction under the doctrine of parens patriae to issue a temporary protective order, if an emergency is determined to exist, which will preserve the status quo for a limited time necessary for the parties to bring a proper action in Georgia. Nussbaumer. However, the trial court in this case did not enter such an order. It improperly awarded temporary custody to Blaine Kennedy, apparently pending a final custody determination.

It appears that appellant has been separated from her young child for some nine months as this is written. We find that this constitutes material harm which cannot be remedied by appeal. Such a passage of time in a young life is overwhelming. We direct that this cause be expedited by the Florida courts.

Accordingly, the order denying the motion to dismiss is quashed, and the court is directed to dismiss appellees' petition. Since the trial court lacked subject matter jurisdiction to make the temporary award of custody, it is quashed. The court is directed to issue a protective order that will preserve the status quo only for the limited time necessary (if a true emergency exists) to allow a proper suit to be filed in Georgia.

ORDER QUASHED and REMANDED.

COWART and GOSHORN, JJ., concur.