MONTANO v. MONTANO

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Docket Number

No. 86-1637.

Attorney(S)

Ferdie Gouz and Michael Heidt and Ainslee Ferdie, Battisti Battisti, Coral Gables, for appellant. Dieguez Quintero and Anthony Dieguez, Hialeah, for appellee.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Julio Montano, a Guatemalan citizen, and Maria Montano, an American citizen, were married in Miami, Florida in 1980 through a ceremony performed by a Guatemalan notary public, with the marriage certificate properly recorded in Guatemala. The couple resided at various locations including condominiums in Dade County and Guatemala, as well as a marital residence in Broward County. Mrs. Montano filed for dissolution of marriage in Dade County, Florida. Following a final hearing, the trial court issued a final judgment dissolving the marriage, fixing child support, alimony, and attorney's fees, and ordering distribution of property. The former husband appealed the judgment and also challenged the denial of his motion to recuse the trial judge.

Legal Issues Presented

Whether the Florida courts had jurisdiction to dissolve the marriage given that the marriage was not performed in compliance with Florida statutory formalities.
Whether the trial court had jurisdiction to make a disposition of real property owned by the parties.
Whether the trial court had jurisdiction to award child support, alimony, and attorney's fees without personal jurisdiction over the former husband.
Whether the trial judge should have been recused based on the former husband's motion.

Arguments of the Parties

Appellant's Arguments

The Florida courts lacked jurisdiction to dissolve the marriage because it was not performed according to Florida statutory formalities.
The trial court lacked jurisdiction to dispose of real property because the notice of action for constructive service failed to describe the property as required by statute.
The trial court lacked jurisdiction to award child support, alimony, and attorney's fees because it did not have personal jurisdiction over him.

Appellee's Arguments

The marriage, valid under Guatemalan law, should be recognized in Florida under principles of comity, thus conferring jurisdiction to dissolve the marriage.
The trial court had in rem jurisdiction sufficient to award child support, alimony, and attorney's fees, citing a line of Florida cases supporting this position.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Davis v. Dieujuste, 496 So.2d 806 (Fla. 1986)	Recognition of "divisible divorce" concept; in rem jurisdiction suffices to dissolve marriage, but personal jurisdiction generally required for alimony, child support, and costs.	Used to reject appellee's argument that in rem jurisdiction alone sufficed to award alimony, child support, and attorney's fees.
Williamson v. Williamson, 478 So.2d 850 (Fla. 3d DCA 1985)	Requirement for proper notice in constructive service, including description of property.	Applied to find trial court lacked jurisdiction to adjudicate rights in real property due to deficient notice.
Hennig v. Hennig, 162 So.2d 288 (Fla. 3d DCA 1964), cert. denied, 166 So.2d 754 (Fla. 1964)	Notice requirements for constructive service in property matters.	Supported the conclusion that failure to describe property in notice invalidated jurisdiction over real property.
Webb v. Webb, 156 So.2d 698 (Fla. 3d DCA 1963)	Notice requirements in constructive service affecting jurisdiction over property.	Reinforced the necessity of adequate notice for jurisdiction over real property.
Peacock v. Peacock, 36 So.2d 206 (Fla. 1948)	Alimony cannot be awarded when process is by publication only.	Supported the court's position that personal jurisdiction is required for alimony awards.
Adams v. Adams, 218 So.2d 777 (Fla. 1st DCA 1969)	Requirement of personal jurisdiction for awards related to support and fees.	Used to uphold that constructive service alone is insufficient for such awards.
Voss v. Voss, 169 So.2d 351 (Fla. 3d DCA 1964)	Personal jurisdiction necessary for alimony and related awards.	Applied to affirm the necessity of personal jurisdiction over the party for such orders.
Fischer v. Knuck, 497 So.2d 240 (Fla. 1986)	Standards for motions to disqualify a trial judge, requiring factual foundation for alleged prejudice.	Used to reject appellant's motion for recusal due to insufficient grounds.
52 Am.Jur.2d Marriages § 84 (1970)	Recognition of foreign marriages valid under foreign law for dissolution purposes in U.S.	Supported recognition of the Guatemalan marriage as valid for Florida dissolution jurisdiction.

Court's Reasoning and Analysis

The court first addressed the appellant's challenge to jurisdiction over the dissolution of marriage. It held that under principles of comity, a marriage valid under foreign law, such as the Guatemalan marriage here, is recognized in Florida for dissolution purposes. Since the former wife resided in Florida for six months prior to filing and the husband was properly served by constructive notice, the court had in rem jurisdiction to dissolve the marriage.

Regarding disposition of real property, the court found merit in the appellant's contention. The notice of action by publication failed to describe the real property as required by Florida Statutes section 49.08(4), thus depriving the trial court of in rem jurisdiction to adjudicate property rights. The court relied on multiple precedents emphasizing the necessity of proper notice describing the property.

On the issue of awarding child support, alimony, and attorney's fees, the court rejected the appellee's position that in rem jurisdiction sufficed. Citing the Florida Supreme Court in Davis v. Dieujuste, the court acknowledged the "divisible divorce" concept distinguishing marital status from financial obligations. It concluded that personal jurisdiction over the appellant is generally required to award such support and fees, which was lacking here due to service by publication only.

Finally, the court addressed the appellant's motion for recusal of the trial judge, finding no valid grounds. It applied the standard that a motion and affidavit must assert sufficient factual basis for alleged bias or prejudice, which was not met.

Holding and Implications

The court affirmed those portions of the final judgment granting dissolution of the marriage and awarding child custody. However, it reversed the remainder of the final judgment, specifically the disposition of real property and the awards of child support, alimony, and attorney's fees, due to lack of jurisdiction.

The decision directly affects the parties by limiting the scope of the trial court’s judgment to valid jurisdictional grounds. No new legal precedent was established beyond clarifying the application of existing jurisdictional principles in the context of foreign marriages and service by publication.

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JULIO MONTANO, APPELLANT, v. MARIA PIA MONTANO, APPELLEE.

PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage and from an order denying the former husband's motion for recusal of the trial judge. An attack is made on the court's exercise of jurisdiction to (1) dissolve the marriage, (2) make a disposition of property, and (3) make an award of alimony, child support, and attorney's fees.

Julio Montano, a Guatemalan citizen, and Maria Montano, an American citizen, were married in Miami, Florida in 1980. The ceremony was performed by a Guatemalan notary public, and the certificate of marriage was issued and properly recorded in Guatemala. The couple lived at various times in a condominium in Dade County, a marital residence in Broward County, and a condominium in Guatemala. Mrs. Montano filed for dissolution of marriage in Dade County. After a final hearing the trial court issued a final judgment dissolving the marriage, fixed an amount for child support, alimony and attorney's fees, and ordered a distribution of property.

Appellant does not challenge the validity of the marriage under Guatemalan law, but argues that because the marriage was not performed in compliance with Florida statutory formalities the courts of Florida lack jurisdiction to dissolve the marriage. We disagree. Under principles of comity a marriage by citizens of a foreign country, if valid under foreign law, may be treated as valid in Florida for the purposes of a dissolution action. See generally 52 Am.Jur.2d Marriages § 84 (1970) (a marriage valid according to law of foreign country will be recognized as valid in United States). Where the former wife resided in Florida for six months prior to filing the petition for dissolution, and the Guatemalan husband was properly served by constructive notice, the trial court properly exercised in rem jurisdiction to dissolve the valid Guatemalan marriage.

There is merit, however, in the former husband's second contention that the trial court was without jurisdiction to make a disposition of real property. Because the wife was unable to obtain personal service of process on her husband, constructive service was made by publication. Although her petition for dissolution contained a description of the real property located in Dade and Broward Counties owned by the appellant, the notice of action for constructive service failed to describe the property. For failure of the published notice to describe the real property as required by section 49.08(4), Florida Statutes (1985), the trial court was without in rem jurisdiction to adjudicate the parties' rights in the realty. Davis v. Dieujuste, 496 So.2d 806 (Fla. 1986); Williamson v. Williamson, 478 So.2d 850 (Fla. 3d DCA 1985); Hennig v. Hennig, 162 So.2d 288 (Fla. 3d DCA), cert. denied, 166 So.2d 754 (Fla. 1964); Webb v. Webb, 156 So.2d 698 (Fla. 3d DCA 1963).

The appellant's third contention is that because the trial court did not have in personam jurisdiction over him it was without jurisdiction to award child support, alimony, and attorney's fees. The appellee, citing a line of Florida cases, argues that because the trial court had in rem jurisdiction to enter the final order dissolving the marriage, it had the power to award child support, alimony and attorney's fees. A later Florida Supreme Court decision, nevertheless, has implicitly rejected the contention. In Davis v. Dieujuste, 496 So.2d 806, 808 (Fla. 1986), the Supreme Court restated its recognition of the "divisible divorce" concept and its dual aspects — one relating to marital status and the other relating to property rights and obligations of the parties. It was noted that although in rem jurisdiction obtained by constructive service is sufficient to dissolve a marriage, personal jurisdiction is generally required before a court may issue a decree ordering payment of alimony, child support, and costs. Id. See also Peacock v. Peacock, 160 Fla. 630, 36 So.2d 206 (Fla. 1948) (alimony cannot be awarded when process is by publication only); Adams v. Adams, 218 So.2d 777 (Fla. 1st DCA 1969); Voss v. Voss, 169 So.2d 351 (Fla. 3d DCA 1964).

See Pestana v. Pestana, 486 So.2d 666 (Fla. 1st DCA 1986); Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); Wood v. Wood, 276 So.2d 527 (Fla. 3d DCA 1973).

On the final issue, there are no valid grounds for disqualifying the trial judge. See Fischer v. Knuck, 497 So.2d 240 (Fla. 1986) (petitioner's motion and affidavit for disqualification must assert facts sufficient to show factual foundation for alleged fear of prejudice.)

Accordingly, those portions of the final judgment granting dissolution of the marriage and awarding child custody are affirmed; in all other respects the final judgment is reversed.