Case No. 5D21-933
Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellant. Adam M. Bird, of WhiteBird, PLLC, Melbourne, for Appellee.
Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellant.
Adam M. Bird, of WhiteBird, PLLC, Melbourne, for Appellee.
EISNAUGLE and WOZNIAK, JJ., concur.
EVANDER, J., concurs specially, with opinion.
EVANDER, J., concurring specially.
I agree that the trial court properly denied the former husband's motion to vacate the final judgment of dissolution of marriage. I write to briefly address the former husband's lack of subject matter jurisdiction argument.
The former husband filed a Verified Complaint/Action for Divorce and Child Custody in New York in December 2011. The complaint acknowledged that the parties’ minor children were currently residing in Florida, but contained no allegations regarding their prior residence(s). The complaint was never served on the former wife and that case never moved forward.
In 2013, the former wife filed a petition for dissolution of marriage in Florida and alleged that the minor children had resided with her, in Florida, since July 1, 2011. The former wife's petition was served, in Florida, on the former husband. After an unsuccessful effort to dismiss the Florida proceeding for lack of personal jurisdiction, the former husband ceased participation in the case. A final judgment of dissolution of marriage was entered in the Florida case in November 2014. The final judgment awarded the parties shared parental responsibility of the minor children with the majority time-sharing being awarded to the former wife.
In March 2019, the former husband filed a motion to vacate the final judgment, arguing that the judgment was void. Specifically, the former husband alleged that the trial court did not comply with the requirements set forth in section 61.519, Florida Statutes (2013), and, therefore, lacked subject matter jurisdiction. The trial court denied the motion and this appeal followed.
Section 61.519 sets forth the requirements of how a Florida court is to proceed where there are simultaneous child custody proceedings in another state. Section 61.519(1) states, in relevant part, that "a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this part ...." (emphasis added).
The trial court's purported noncompliance with section 61.519 would only support a determination that the court lacked procedural jurisdiction, not subject matter jurisdiction. "Procedural jurisdiction" refers to "the power of the court over a particular case that is within its subject matter jurisdiction." U.S. Bank Nat'l Ass'n v. Anthony-Irish , 204 So. 3d 57, 60 (Fla. 5th DCA 2016). "Subject matter jurisdiction" refers to "the power of a court to adjudicate the type of case before it." Tobkin v. State , 777 So. 2d 1160, 1163 n.2 (Fla. 4th DCA 2001). Here, the trial court had subject matter jurisdiction under section 61.514(1)(a), Florida Statutes (2013). Section 61.519(1) ’s reference to a court's "exercise [of] its jurisdiction" implicitly recognizes the existence of subject matter jurisdiction.
[A] court of this state has jurisdiction to make an initial child custody determination only if ... [t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent ... continues to live in this state[.]
A trial court's lack of procedural jurisdiction does not render a judgment void. See, e.g. , Anthony-Irish , 204 So. 3d at 62 (holding appellant's Florida Rule of Civil Procedure 1.540(b) motion was untimely where appellant's argument only went to court's procedural jurisdiction, not subject matter jurisdiction). Accordingly, the motion to vacate, filed more than four years after entry of the final judgment, was untimely under Florida Family Law Rule of Procedure 12.540.