By Michael H. Gora
Q My wife and I resided in Jacksonville, Duval County, when we separated about ten years ago. We litigated our divorce in Duval County, and had a trial, because we could not settle our case. As a result, I was ordered to pay her permanent alimony and child support.
I re-married, she did not. Coincidentally we both moved to south Florida, me to Boca Raton and the wife to Deerfield Beach. We live minutes away from one another.
Over the last eight months, the good living I made as a car salesman disappeared, as people virtually stopped buying new cars at my dealership.
I got behind in my alimony and child support. My brother is an attorney here and he prepared and filed papers in Broward County to lower my alimony and child support payments.
At the same time, my wife hired a Boca Raton attorney who filed a contempt case against me in Palm Beach County. Coincidentally both cases were filed the same day, and each of the two Summonses was served the same day, yesterday. Do we have to each pursue our own cases in both courts? Is there one court, which will have control over both cases? How do we straighten this out?
A. Unlike original divorce cases, which should only be filed in the county in which a couple last lived as husband and wife, modifications and contempt motions can be filed by either of you in the county where you live, or in the county where the other person lives.
In appellate decisions, the Florida Supreme Court has ruled that jurisdiction in such cases attaches “when the process is first perfected”, meaning served upon the other person.
Recently, when a summons was served on you for contempt, and on your former wife for modification the process server not only indicated the day of the service on his or her “return”, or notice to the court, but also listed the time of day of the service. It should be easy to determine who actually was served first.
While both courts would have “jurisdiction” over both cases, the “venue” for the case would usually lie in the county in which the process was first served. “Jurisdiction” means the court, which has the power to adjudicate the issues in the case. In your cases this would be either county.
“Venue” means the location where the case should be heard. If neither of your attorneys attempts to consolidate the cases in one county or the other, the cases can both go forward, in separate counties, as both courts have “jurisdiction.” That would not be cost effective.
If either counsel seeks to consolidate the cases in one county or the other, the case should go to the county in which process was served first. There is an exception, which probably does not apply here, because the two of you live so close to one another, and grounds for your cases appear to be local in origin.
If you lived far apart, and the records and witnesses who were necessary to prove the cases were, for example in your case, all in Duval County, one of you might seek to have the cases consolidated, and transferred to Duval County.
As the origin of the final judgment, Duval County’s circuit court would be a third circuit, which would have jurisdiction, and that forum might be considered “more convenient” because of the location of the witnesses. It appears that the witnesses and documents in your case for modification, and her witnesses and documents in her case for contempt would all be found in south Florida, so no further change of venue would be called for.
Michael H. Gora, Boca Raton divorce lawyer, has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. Questions may be submitted to Mr. Gora at email@example.com.