298 So. 2d 493 | Fla. Dist. Ct. App. | 1974
Lead Opinion
George A. McLeod, petitioner below, filed in the Circuit Court of Walton County, Florida, a petition for modification of the child custody and child visitation rights provided for in a final judgment of divorce previously entered by the Circuit Court of Escambia County, Florida. Phyllis C. McLeod Ward, respondent below, (petitioner here) filed a motion to dismiss on the ground that the jurisdiction over such modification is in the Circuit Court of Escambia County by virtue of the previous final judgment entered by that court and that the Circuit Court of Walton County is without jurisdiction. The motion to dismiss was denied and the petition for modification was set for hearing. Suggestion for writ of prohibition was filed in this court, and we issued rule nisi.
We have considered the brief of petitioner, the return and brief of respondent and the oral arguments of the attorneys for the respective parties. Under the law as pronounced by this court in Jones v. State ex rel. Greathouse, Fla.App. (1st) 241 So.2d 432, the Circuit Court of Walton County is without jurisdiction to modify the final judgment of the Circuit Court of Escambia County as to child custody and visitation. See also Poliak v. Poliak, Fla.App. (2d) 235 So.2d 512, and Haley v. Edwards, Fla.App. (4th) 233 So.2d 647.
By this ruling, we do not mean to infer that the circuit court of any county in which a child may be located would not have jurisdiction to adjudicate questions of dependency and delinquency under Chapter 39, Florida Statutes.
Rule absolute in prohibition be and it is hereby issued.
Concurrence Opinion
(concurring specially).
It has been said that it is more important that the law be certain than just. It is only in the interest of certainty that I concur with the result reached here. The several cases by eminent jurists writing for the several District Courts of Appeal cited in the opinion by my colleagues do appear to sustain the conclusion reached on the basis stated in the opinion. However, I do not see the issues as involving jurisdiction. Although often confused, jurisdiction and venue are entirely different (See Ringling Brothers v. State of Florida, Fla.App.1st 1974, 295 So.2d 314.) Were we not bound by the doctrine of Stare Decisis (which is the only manner in which certainty may be maintained in the law), I would urge that the venue statutes be applied in the case sub judice and other like cases; which would, in my opinion, result in a more equitable resolution of the problem. Further, in considering the factually similar cases cited in the above opinion, I think it pertinent to suggest that there is a distinction between the remedies of habeas corpus and modification of an existing final judgment in a domestic relations case.
