Elliott v. WeymanElliott v. Weyman
Patrick G. Kennedy, of Van Wert, Heebner & Kennedy, Daytona Beach, for appellee.
McCORD, Judge.
A final judgment dissolving the marriage of the parties was entered by the Circuit Court of Broward County in 1973. It granted custody of one minor child of the marriage to appellant (the husband) and custody of the remaining two minor children to the wife (appellee). In the summer of 1974, the two minor children in appellee‘s custody visited appellant in Mississippi. Appellant did not return them but sought a change of custody in a Mississippi court. That court dismissed the action for lack of jurisdiction and directed appellant to file in the appropriate Florida court and granted appellant temporary custody pending the outcome of the Florida litigation. Appellant thereupon filed a petition to modify custody and child support in the Circuit Court of Volusia County where appellee resides. He filed a three count amended petition. Count 1 sought modification of child support; Count 2 sought a social investigation of appellee‘s home; and Count 3 sought a change in custody. The court below dismissed the amended petition with prejudice finding that jurisdiction was vested in the Circuit Court of Broward County. Appellant appeals the order of dismissal.
The dismissal of Count 3 was correct. Sole jurisdiction to change custody of the children remained in the Circuit Court of Broward County. Jones v. State ex rel. Greathouse, 241 So.2d 432 (Fla. 1 DCA 1970); Ward v. Wells, 298 So.2d 493 (Fla. 1 DCA 1974); Wells, In and For Walton County v. Ward, 314 So.2d 138 (Fla. 1975). The court below did not err in dismissing Count 2.
“In any action where the custody of a minor child is in issue, the court may request the [Department of Health and Rehabilitative Services] to make an investigation and social study concerning all pertinent details relating to the child and each parent ...”
Whether or not the court determines to request an investigation and social study is within the court‘s discretion. Certainly there was no abuse of discretion in the trial court‘s denial of appellant‘s request. The court had no jurisdiction to consider custody.
As to dismissal of Count 1, since appellee is a resident of Volusia County, the circuit court of that county under
AFFIRMED.
MILLS, J., concurs.
BOYER, C.J., concurs specially.
BOYER, Chief Judge (concurring specially).
As to count one I concur with the majority under the peculiar facts of this case and
As to count two I concur that the learned trial judge was eminently correct in that whether or not he determined to request an investigation and social study was within his sound discretion.
As to count three I am of the view that the majority opinion is in conflict with Danson v. Danson, 76 Fla. 449, 80 So. 62 (1918) (see special concurring opinion in Wells in and for Walton County v. Ward, Sup.Ct.Fla. 1975, 314 So.2d 138). However, inasmuch as the majority in the case last above cited found no conflict and affirmed this court‘s opinion in Ward v. Wells, Fla.App. 1st 1974, 298 So.2d 493, in the interest of stare decisis I concur in affirmance as I did in Ward v. Wells, supra. In so doing, I again observe the oft-repeated confusion between jurisdiction and venue. (Please see sixth paragraph of Wells in and for Walton County v. Ward, supra, wherein the court, in the same paragraph appears to have used the terms jurisdiction and venue interchangeably.)