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Ecuador Woman Looks to Florida Court for Help with Divorce

This summer the Third District Court of Appeal heard a case arising from a dissolution of marriage action where both Husband and Wife were citizens of Ecuador. They were married in 1991 on a business trip to Miami. They returned to Ecuador and throughout their marriage lived and worked in Ecuador. In 2013, the Husband abandoned their home in that country.

In August 2014, the Husband notified the Wife that he was seeking “dissolution of the community property.” He didn’t and couldn’t file a divorce action in Ecuador because, at the time, there was a three-year waiting period before a person who left the marital home could seek a divorce. Shortly thereafter, the Wife flew to Miami and filed a Petition for Support Unconnected with Dissolution of Marriage, pursuant to Florida Statute § 61.09, which provides:

If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.

Motion to Dismiss

The Husband was personally served in Florida, and he filed a motion to dismiss the Wife’s petition for lack of subject matter jurisdiction, lack of personal jurisdiction, and for “failure to file a maintenable action under Florida law.” An evidentiary hearing was held where the Husband withdrew all his motions to dismiss noticed for the evidentiary hearing except for his motion to dismiss based on forum non conveniens. In opposition, the Wife argued that his motion was untimely. Specifically, she claimed that Florida Rule of Civil Procedure 1.061(g) requires that “[a] motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.” (emphasis added).

The trial court denied the Husband’s motion to dismiss as untimely because it wasn’t raised within 60 days of service of process of the Wife’s original petition. In addressing the untimeliness argument, the trial court found that:

It is undisputed that personal service of process of Wife’s August 12, 2014 Petition for Alimony Unconnected to Divorce was made on Husband on August 13, 2014, in Miami-Dade County, Florida, while he was voluntarily in Florida looking at colleges with the parties’ son. It is undisputed that the first time Husband raised forum non conveniens as a defense was on July 20, 2015, in his ‘Motion to Strike Service of Process and to Dismiss Petitioner/Wife’s Petition for Dissolution of Marriage.

On appeal, Judge Barbara Lagoa wrote in her opinion that the law is well-established that where a motion to dismiss based on forum non conveniens is untimely, the motion is time-barred and must be denied. It was undisputed that the Husband was served with her petition on August 13, 2014, and that the Husband first raised the defense of forum non conveniens on July 20, 2015. Because he brought his motion to dismiss based on forum non conveniens more than 60 days after service of process, his motion was untimely under the plain language of Rule 1.061(g).

The Husband argued that Rule 1.061(g)’s 60-day timeframe doesn’t apply because a forum non conveniens defense wasn’t available to challenge the Wife’s maintenance action. However, in making this argument, the Court said he blurred the distinction between venue and forum non conveniens.

The Difference Between Venue and Forum Non Conveniens

Venue and forum non conveniens are not the same: venue is “[t]he proper or a possible place for a lawsuit to proceed, [usually] because the place has some connection either with the events that gave rise to the lawsuit or with the plaintiff or defendant.” In contrast, forum non conveniens is a broader concept that addresses “the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” In other words, the Court said the doctrine of forum non conveniens may be invoked where venue is proper but inconvenient.

The Husband failed to file a motion to dismiss based on forum non conveniens within the required time frame. The district court’s decision was affirmed. Topic v. Topic, 2017 Fla. App. LEXIS 8333 (Fla. DCA 3rd June 7, 2017).

Contact Us

DeVoe Law Firm can help you assert your rights to marital property. As this case shows, there are specific procedures and rules that must be strictly followed, or you may lose certain rights forever. Call DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.

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