FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D22-2632
LT Case No. 2016-10991-FMDL
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ANTHONY T. LITSCH, III
Appellant,
v.
JULIE LITSCH n/k/a JULIE MILLS,
Appellee.
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On appeal from the Circuit Court for Volusia County.
Matthew M. Foxman, Judge.
Nicholas A. Shannin and Carol B. Shannin, of Shannin Law
Firm, Orlando, for Appellant.
Julie Mills f/k/a Julie Litsch, Fox Lake, IL, pro se.
October 13, 2023
WALLIS, J.
Anthony Litsch (“Appellant”) appeals an order denying
rehearing of a joint decision by Florida and Illinois courts to
transfer jurisdiction over child custody matters from Florida to
Illinois. Appellant argues that the Florida court erred in ceding
jurisdiction to Illinois, in violation of the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”). We agree and
reverse.
Facts
The parties were married in 2009, had one child in 2010, and
separated in 2014. In 2016, Julie Mills f/k/a Julie Litsch
(“Appellee”) filed a petition for dissolution of marriage in Volusia
County, Florida. In October of 2016 the Florida court entered a
Final Judgment of Dissolution of Marriage, finding jurisdiction
over the subject matter and the parties. In the judgment, the court
ratified and incorporated agreements regarding shared parenting
and timesharing, and it reserved jurisdiction to enforce those same
agreements. The parties agreed that Appellant had been
exercising the majority of the timesharing with the child in Florida
since the inception of the case and that Appellee would not remove
the child from Florida without agreement by Appellant in writing
or order of the court.
In November 2020, the parties agreed to have the child
temporarily live with Appellee in Illinois. They memorialized that
agreement by a handwritten statement from Appellant with the
understanding that they would revisit this placement depending
on how the child responded to living in Illinois.
In February of 2022, the child was hospitalized. Shortly after
the hospitalization, Appellant communicated with Appellee
expressing disappointment due to not being informed of the
hospitalization and notifying Appellee of his intention to travel to
Illinois in order to bring the child back to Florida. Appellee
thereafter retained counsel and notified Appellant of her intent to
keep the child in Illinois. In response, Appellant filed several
motions in the Florida court in an effort to regain primary
timesharing in Florida.
Ultimately, on September 27, 2022, the Illinois court
conducted a UCCJEA hearing to determine which state had
jurisdiction. The parties, their attorneys, and both trial judges
appeared at the hearing via remote video connection. At the
conclusion of the hearing, the Illinois court entered a written order
stating that Illinois was the home state of the child for purposes of
the UCCJEA and that, over Appellant’s objection, Florida ceded
and Illinois accepted jurisdiction of the case. The Florida court did
not enter a corresponding order. Appellant’s motion for rehearing
in the Florida court was denied and he timely appealed. We have
2
jurisdiction over this final order pursuant to Florida Rule of
Appellate Procedure 9.030(b)(1)(a).
Discussion
Appellant correctly asserts that the Florida court erred in
ceding jurisdiction to the Illinois court by concluding that Illinois
was the child’s home state.1 Under the UCCJEA,2 the
determination of a child’s home state applies to initial custody
determinations. See § 61.514(1)(a), Fla. Stat. (2016) (stating that
a court may make “an initial child custody determination,” inter
alia, if that state is “the home state of the child on the date of the
commencement of the proceeding”); McIndoo v. Atkinson, 159 So.
3d 227, 230 (Fla. 4th DCA 2015) (“[T]his ‘home state’ rule applies
to an initial child custody determination”…).
However, once a court has made an initial child custody
determination under section 61.514, that court has “exclusive,
continuing jurisdiction” over the determination until:
(a) A court of this state determines that the child, the
child's parents, and any person acting as a parent do not
have a significant connection with this state and that
substantial evidence is no longer available in this state
concerning the child's care, protection, training, and
personal relationships; or
1 A child’s “home state” is “the state in which a child lived
with a parent or a person acting as a parent for at least 6
consecutive months immediately before the commencement of a
child custody proceeding.” § 61.503(7), Fla. Stat. (2022).
2 The UCCJEA (sections 61.501–.542, Florida Statutes) has
been adopted in 49 states, including Florida and Illinois, to, inter
alia, “[a]void jurisdictional competition and conflict with courts of
other states in matters of child custody” and “make uniform the
law” with respect to subject of the UCCJEA. § 61.502, Fla. Stat.
(2022).
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(b) A court of this state or a court of another state
determines that the child, the child's parent,[3] and any
person acting as a parent do not presently reside in this
state.
§ 61.515(1), Fla. Stat. (2022).
3 The legislature’s use of the word “parent” in section
61.515(1)(b) appears to be a typographical error because the same
provision in the uniform act and in other states uses the word
“parents,” not parent. See, e.g., Unif. Ch. Custody Jurisd. & Enf’t
Act § 202 (2022); 750 Ill. Comp. Stat. 36/202 (2022). In addition,
section 61.516 allows a Florida court to modify the custody
determination of a court of another state if it determines that “the
child, the child's parents, and any person acting as a parent do not
presently reside in the other state.” § 61.516, Fla. Stat. (2022).
Construing subsection (1)(b) literally would create irreconcilable
conflict between that subsection and subsection (1)(a) and section
61.516, would undermine the purposes of the UCCJEA, and would
lead to the absurd result of establishing different standards for the
courts in different states to determine which court has jurisdiction.
For example, if section 61.515(1)(b) applied literally in this case,
subsection (1)(a) would require a Florida court to determine, in
part, that the child and both parents do not have a significant
connection with this state,” but subsection (1)(b) would only
require the Illinois court to determine that the child and one parent
do not presently reside in Florida. Although Florida courts have
previously discussed this discrepancy, they have consistently
required that both parents no longer reside in Florida before
finding that Florida no longer has exclusive, continuing
jurisdiction. See DeStefanis v. Han Ming Tan, 231 So. 3d 537, 540
(Fla. 3d DCA 2017) (quoting both provisions and concluding that
Florida no longer had jurisdiction because neither parent lived in
Florida anymore); Tidwell v. Tidwell, 983 So. 2d 742, 743 (Fla. 4th
DCA 2008) (same); Steckler v. Steckler, 921 So. 2d 740, 745 (Fla.
5th DCA 2006) (“[S]o long as the former husband is still a resident
of Florida, sufficient contacts still remain in the state such that
Florida may retain jurisdiction.”).
4
Alternatively, a Florida court with exclusive, continuing
jurisdiction “may decline to exercise its jurisdiction at any time if
it determines that it is an inconvenient forum under the
circumstances and that a court of another state is a more
appropriate forum.” § 61.520, Fla. Stat. (2022). Before doing so,
however, the court must consider whether it is appropriate for a
court of another state to exercise jurisdiction, by considering all
relevant factors, including eight statutory factors. § 61.520(2), Fla.
Stat. (2022).
Neither section 61.515 nor section 61.520 uses the phrase
“home state,” much less uses it as a basis for Florida to cede its
exclusive, continuing jurisdiction under the UCCJEA to another
state. Consequently, the Florida court erred in ceding its UCCJEA
jurisdiction to Illinois on the ground that Illinois was now the
child’s home state because the child had been living in Illinois for
more than six months. See Beehler v. Beehler, 351 So. 3d 1257,
1260 (Fla. 1st DCA 2022) (“This exclusive jurisdiction in fact
persists until a trial court of this state ‘determines that the child,
the child's parents, and any person acting as a parent do not have
a significant connection with this state and that substantial
evidence is no longer available in this state concerning the child's
care, protection, training, and personal relationships.’”); Sosa v.
Pena, 351 So. 3d 107, 108 (Fla. 3d DCA 2022) (“Pursuant to section
61.515(1), a Florida court retains exclusive, continuing jurisdiction
after making a custody determination until it determines both
parents and the children do not reside in or have a significant
connection to the state.”); Bock v. Vilma, 279 So. 3d 1246, 1248
(Fla. 3d DCA 2019) (“The UCCJEA ‘does not operate to divest a
court of continuing jurisdiction unless virtually all contacts have
been lost with the forum state.’” (quoting Yurgel v. Yurgel, 572 So.
2d 1327, 1331 (Fla. 1990))); Baker v. Tunney, 201 So. 3d 1235, 1239
(Fla. 5th DCA 2016) (holding Florida was child’s home state and
would remain child’s home state until it relinquished jurisdiction,
thus its dismissal of custody petition and New York’s assumption
of home state jurisdiction was improper); Steckler, 921 So. 2d at
744 (“Under section 61.515, Florida Statutes (2005), Florida
retains exclusive, continuing jurisdiction over child custody
issues.”).
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Appellee correctly asserts that the Florida court based its
decision on more facts than merely the amount of time the child
had been living in Illinois. The Florida court stated that Illinois
was now the child’s home state, and Illinois assuming jurisdiction
would serve the child’s best interest because the child had been
living in Illinois for a “lengthy period of time” and receiving
services there to address his needs. The Florida court also agreed
with the Illinois court’s additional findings that the child had been
living in Illinois based on the parties’ prior agreement, the child
attended school and therapy in Illinois, the child was involved in
the community, and that continuity was important for the child.
However, these statements do not support the Florida court’s
decision to cede its exclusive, continuing jurisdiction to Illinois
under section 61.515(1)(a) or (b), nor could they have because
Appellant still resided in Florida and the child still had significant
contact with Florida. Nor do these statements support ceding
jurisdiction under 61.520 (inconvenient forum) because the
findings do not conform to the statutory requirements of that
section. Cf. Poliandro v. Springer, 899 So. 2d 441, 444 (Fla. 4th
DCA 2005) (reversing order dismissing paternity petition and
finding Alabama had jurisdiction based solely upon discussion
between two judges; court failed to allow parties to be present,
record did not contain factual basis to support ceding jurisdiction,
and specific findings would be required on remand).4
4 Although Appellant does not challenge the Illinois court’s
statement that the parties agreed that the child could relocate to
Illinois, we believe the Illinois court made that statement merely
to explain why the child had been living in Illinois. We do not think
that the trial court relied on the 2020 relocation agreement as a
basis for concluding that Illinois was now the child’s home state.
Instead, it relied on the length of time the child had resided in
Illinois and the child’s contacts with Illinois. Consequently,
Appellant cannot be faulted for not challenging on appeal the
Illinois court’s statement about the agreement (and the Florida
court’s agreement with that statement). Even if the Illinois court
had relied on the 2020 relocation agreement to support its decision,
that agreement could not be considered a tipsy coachman ground
to affirm because, as Appellee correctly notes, it did not comply
with section 61.13001(2)’s requirements that a relocation
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Accordingly, we reverse the order denying rehearing and
remand with instructions to the Florida court to vacate its decision
to decline its exclusive, continuing jurisdiction, and to "follow the
procedures established in the UCCJEA in determining whether it
should proceed to hear any matter related to the custody of the
child.” Bosh v. Mathis, 99 So. 3d 631 (Fla. 5th DCA 2012). Those
procedures include giving each party the opportunity to present
evidence. Cf. Douglas v. Johnson, 65 So. 3d 605, 607 (Fla. 2d DCA
2011) (stating that an “opportunity to be heard” under UCCJEA
(section 61.518) means an opportunity to present witnesses or
evidence); Poliandro, 899 So. 2d at 444 (“The case is reversed and
remanded to the trial court for further proceedings consistent with
this opinion. If, after considering the evidence, the court still
decides to transfer the case, the order must contain specific factual
findings.”).5
REVERSED and REMANDED with instructions.
EDWARDS, C.J., and MACIVER, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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agreement must define timesharing going forward and be ratified
by the court. Thus, it cannot be a basis to conclude that UCCJEA
jurisdiction over child custody matters had already changed from
Florida to Illinois when the child moved to Illinois with Appellant’s
consent.
5 We express no opinion on what the outcome of this hearing
should be.
7