Case No. 5D20-1966
Ryan D. O'Connor and Megan DeVault, of Akerman, LLP, Orlando, for Appellant. Samuel Alexander, of Alexander Appellate Law P.A., DeLand, for Appellee.
Ryan D. O'Connor and Megan DeVault, of Akerman, LLP, Orlando, for Appellant.
Samuel Alexander, of Alexander Appellate Law P.A., DeLand, for Appellee.
Rafaelita Edwards appeals two nonfinal orders denying her motion to dismiss Michael Codrington's paternity petition for lack of jurisdiction and inconvenient forum and denying her motion for leave to amend her answer. Our record does not provide a basis to disturb the trial court's findings related to subject matter jurisdiction, including its determination that it had jurisdiction over the parties’ eight-year-old child, or the current suitability of Volusia County to litigate this dispute. And although the trial court erred in the reason it concluded it had personal jurisdiction over Edwards, it nonetheless reached the right result because Edwards waived the defense by failing to raise it in her pro se answer. Finally, Edwards does not challenge the trial court's order denying leave to amend in her initial brief. We therefore affirm.
Codrington and Edwards conceived their child in Belize, where Edwards has lived her entire life. The child was born in Belize, and he lived there until he turned four. At that time, the parties agreed Codrington could bring the child to Florida for medical treatment, and thereafter, to attend school. Edwards contends she withdrew her consent for the child to stay in the United States in 2019 when Codrington refused to bring him to Belize for summer vacation.
Later that year, Codrington filed a paternity petition, alleging that the child was conceived in Belize. He sought a paternity declaration, the entry of a parenting plan, and child support. After receiving her summons in Belize, Edwards sent a pro se letter to the trial court, which treated it as an answer. In the pro se letter, Edwards first explained she could not contest a lawsuit in the United States because:
Edwards does not contest this determination.
I am a citizen of Belize and have lived in Belize all of my life. I do not have a visa to travel to the U.S. nor do I have the resources to travel to the US to defend this claim or to retain an attorney in the U.S. to act on my behalf.
She then admitted Codrington was the child's biological father, and with some conditions relating to education, visitation, and health care, expressed willingness to agree to a parenting plan. She advanced no specific legal arguments.
A law firm later entered a pro bono appearance for Edwards and filed the two motions leading to the orders currently on appeal. The first challenged subject matter jurisdiction, contending Codrington was "wrongfully detaining" the child in Florida, away from the child's "habitual residence" in Belize, in contravention of the Hague Convention. It also contested the trial court's ability to exercise personal jurisdiction over Edwards and insisted that the United States, and specifically Volusia County, was an inconvenient forum to adjudicate this dispute. Edwards submitted an affidavit supporting this motion. The second sought leave to amend Edwards's pro se letter "to more fully articulate" her defenses involving jurisdiction and venue, to assert a new defense of unclean hands, and to counter-petition for custody under the Hague Convention.
Edwards noticed these motions, and four others, for a one-hour hearing. We do not have a transcript of this hearing, but the court minutes and ensuing order reveal that the trial court took testimony from Codrington, who appeared pro se. Edwards did not personally appear, but her lawyer cross-examined Codrington and made argument to the court. The trial court then took the matter under advisement.
The trial court denied Edwards's motion to dismiss in its entirety. It found Codrington's testimony credible, concluded it had jurisdiction over the child under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), and ruled that Codrington was not wrongfully detaining the child in Florida. See § 61.501, Fla. Stat. (2020). It determined Edwards had demanded affirmative relief by demanding parenting plan conditions in her pro se answer, and thus concluded she had no basis to challenge the trial court's personal jurisdiction. It noted Edwards had not presented any evidence or argument to support a change of venue. Finally, it denied Edwards's request to amend her answer, finding that she was just trying to "circumvent the fact that [she] has requested affirmative relief."
As an initial matter, the absence of a transcript prevents us from reviewing the trial court's fact-based determinations on subject matter jurisdiction and inconvenient forum. See Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the ... judgment is not supported by the evidence or by an alternative theory."). Edwards contends the trial court erred by taking Codrington's testimony when her notice of hearing did not reflect the hearing would be evidentiary in nature. But we have "decline[d] to announce a rule that every evidentiary hearing be specifically noticed as such." Bishai v. Health Law Firm, P.A. , 293 So. 3d 1066, 1067 (Fla. 5th DCA 2020). On this record, we cannot conclude the trial court abused Edwards's due process rights by taking evidence from Codrington on the child's home state, especially when Edwards raised this factual issue in her motion to dismiss. Similarly, in the absence of a transcript, we cannot question the trial court's finding that Edwards failed to present evidence or argument on inconvenient forum. We therefore affirm on these issues.
We also affirm the trial court's ruling on its personal jurisdiction over Edwards, although its ultimate rationale was flawed. See Butler v. Yusem , 44 So. 3d 102, 105 (Fla. 2010) (stating that under tipsy coachman doctrine, appellate court may affirm trial court's decision where it "reaches the right result, but for the wrong reason"). The trial court correctly noted that it did not need personal jurisdiction over Edwards to make an initial custody determination over the child. See § 61.514(3), Fla. Stat. (2020). But the trial court erroneously concluded that Edwards sought affirmative relief in her pro se answer. If a litigant requests affirmative relief in her responsive pleading, then she consents to personal jurisdiction. See id . § 48.193(4); Mason v. Hunton , 816 So. 2d 234, 235 (Fla. 5th DCA 2002). Florida's longarm statute describes affirmative relief as "causes of action unrelated to the transaction forming the basis of the plaintiff's claim." § 48.193(4), Fla. Stat.; see Sampson Farm Ltd. P'ship v. Parmenter , 238 So. 3d 387, 391–92 (Fla. 3d DCA 2018). The conditions Edwards outlined to provide her acceptance to Codrington's proposed parenting plan did not constitute affirmative relief. Instead, they were conventional rejoinders to any parenting plan request.
But this does not end our analysis. If Edwards wanted to assert a lack of personal jurisdiction, she needed to raise that defense in her pro se answer. Her failure to do so results in a waiver of her ability to raise this defense. See Fla. Fam. L. R. P. 12.140(b) & (h)(1). Moreover, rule 12.140(b) mandates she outline the "grounds on which" the trial court lacked personal jurisdiction over her and "the substantial matters of law intended to be argued ... specifically and with particularity." Gannon v. Cuckler , 281 So. 3d 587, 594 (Fla. 2d DCA 2019) (citing Roach v. Totalbank , 85 So. 3d 574, 578 (Fla. 4th DCA 2012) ). We cannot conclude her pro se answer complied with rule 12.140(b) ’s plain language.
We are mindful that we construe pro se filings liberally. E.g. , Hanna-Mack v. Bank of Am., N.A. , 218 So. 3d 971, 973 (Fla. 3d DCA 2017). Thus, Edwards could argue that she outlined the grounds through which the trial court lacked personal jurisdiction over her. Indeed, in her pro se answer, she stated that she lived her entire life in Belize, had never been to the United States, could not obtain a visa to travel here to fight for custody of her son, and could not afford a lawyer to do so on her behalf. Unfortunately, however, pro se litigants are still subject to procedural rules. Id . And we construe a rule of procedure the same way we construe a statute. See Koppel v. Ochoa , 243 So. 3d 886, 891 (Fla. 2018) (quoting Saia Motor Freight Line v. Reid , 930 So. 2d 598, 599 (Fla. 2006) ). "When a rule is unambiguous, we cannot add words we wish were there, remove words we wish were not, or do anything other than apply the rule as written." Gannon , 281 So. 3d at 591. Edwards's pro se answer lacks the word "jurisdiction," much less a specific and particular legal argument why the trial court lacked it. To conclude Edwards had raised a valid challenge to personal jurisdiction in her pro se answer, we would have to ignore rule 12.140(b) ’s plain language requiring a specific and particular legal argument. See Roach , 85 So. 3d at 578 (finding litigants failed to state specific legal arguments when they simply cited "insufficiency of service of process and lack of personal jurisdiction as affirmative defenses" and did not outline " substantial matters of law intended to be argued"). Consequently, we must affirm.
Given Codrington's apparent inability to assert personal jurisdiction over Edwards in his petition, we acknowledge the apparent harshness of this result. See § 48.193(1)(a) 8., Fla. Stat. (2020); Wrenn v. McDonnell , 671 So. 2d 884, 885 (Fla. 5th DCA 1996) (voiding final default paternity judgment when petitioner's allegations were insufficient to establish personal jurisdiction over respondent). Our record, however, compels the outcome. We would, however, suggest the trial court revisit its denial of Edwards's motion for leave to amend her answer, especially to the extent that it asserts denials and defenses that she has not waived under the Florida Family Law Rules of Procedure and the UCCJEA.
EDWARDS, J., concurs.
EISNAUGLE, J., concurs specially, with opinion.
EISNAUGLE, J., concurring specially.
I agree with the majority that, given our record, we must affirm. However, I do not join footnote 2 because the denial of Appellant's motion for leave to amend was not challenged on appeal.