Third District Court of Appeal
State of Florida
Opinion filed August 02, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1113
Lower Tribunal No. 16-6810
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Marco DeStefanis,
Appellant,
vs.
Han Ming Tan,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, David H. Young, Judge.
Foster-Morales Sockel-Stone, LLC, and Dori Foster-Morales; Ross &
Girten, and Lauri Waldman Ross, for appellant.
Law Offices of Aliette H. Carolan, PA, and Aliette H. Carolan; Law Offices
of Greene Smith Jean, P.A., and Laura Davis Smith, Sonja A. Jean and Alicia M.
De La O, for appellee.
Before ROTHENBERG, C.J., and FERNANDEZ and LOGUE, JJ.
ROTHENBERG, C.J.
Marco DeStefanis appeals the trial court’s order denying his motion to
dismiss Han Ming Tan’s amended petition for dissolution of marriage on the basis
of forum non conveniens.1 Because it is undisputed that neither DeStefanis nor
Tan are United States citizens; neither currently reside in Florida nor resided in
Florida when the petition and the amended petition were filed; the child in question
is currently and was residing in New York with DeStefanis when the petition and
amended petition were filed; the parties and the child had not resided in Florida for
more than a year at the time of the hearing; and Tan was unable to identify a single
witness or evidence located in Florida, we conclude that it was an abuse of
discretion to deny DeStefanis’ motion to dismiss the amended petition for
dissolution of marriage based on forum non conveniens.
The following facts were either undisputed or stipulated to by the parties.
DeStefanis and Tan entered into a same-sex civil partnership in the United
Kingdom in 2008, which was converted into a same-sex marriage in the United
Kingdom on February 10, 2015. DeStefanis was born in Italy, has dual citizenship
in Italy and the United Kingdom, and resides in New York. Tan was born in
Malaysia, has dual citizenship in Malaysia and the United Kingdom, and resides in
London. DeStefanis is in the United States on a five-year E-2 visa connected to his
1The motion to dismiss raised several grounds for dismissal of the petition, but the
sole ground upon which DeStefanis has appealed is the denial of his motion on the
basis of forum non conveniens.
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employment, and Tan’s periodic stays in the United States were permitted under
the same E-2 visa as a spouse. The parties own a home in London, which they list
as their residence or domicile.
A child was born in Missouri on September 24, 2014, through a surrogate
during the time in which the parties’ relationship was classified as a civil
partnership. On October 3, 2014, a Missouri court declared DeStefanis the genetic
and legal father of the child with exclusive custody of the child.
Prior to the child’s birth, DeStefanis resided in New York and Tan resided in
Malaysia. However, in August 2014, just prior to the child’s birth, Tan moved to
New York. The parties lived in New York with the child briefly and then they all
moved to Miami-Dade County, Florida, where they lived in a friend’s apartment
for approximately ten months, from December 2, 2014 to mid-October 2015. On
or about October 15, 2015, Tan moved back to London. Although Tan has
traveled back and forth between London and Malaysia, he has not returned to
Florida. DeStefanis and the child moved back to New York on March 5, 2016,
where they have continuously lived since leaving Florida.
Both parties have filed petitions for dissolution of marriage. After moving
to New York, DeStefanis filed his petition in London, and Tan was served in
London on or about April 18, 2016. Thereafter, Tan filed his petition in Miami-
Dade County and served DeStefanis in New York City on or about May 13, 2016.
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The parties agree that because the child resided in Miami-Dade County from
approximately December 2, 2014 to March 5, 2016, the Miami-Dade County
circuit court has jurisdiction over the issues relating to the child pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”).
The trial court has already determined that it lacks subject matter jurisdiction
over the dissolution of the marriage, and the dissolution of the marriage is
currently being litigated in London. Thus, the only issues currently before the trial
court are those related to the child, who was born in Missouri and currently lives
with her genetic and legal father in New York, and where she has lived since
March 2016.
ANALYSIS
An order denying a motion to dismiss based on forum non conveniens is
reviewed for an abuse of discretion. Steckler v. Steckler, 921 So. 2d 740, 744 (Fla.
5th DCA 2006). In Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d
86, 87-88 (Fla. 1996), the Florida Supreme Court noted the following:
Forum non conveniens is a common law doctrine addressing 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. Forum non conveniens also serves as a brake on
the tendency of some plaintiffs to shop for the “best” jurisdiction in
which to bring suit—a concern of special importance in the
international context.
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(footnote omitted). This is such a case. First, the petition and amended petition that
were filed in the circuit court were for dissolution of marriage. The circuit court,
however, has no jurisdiction over the dissolution of the marriage, which is being
litigated in London. Second, although the trial court has jurisdiction over the
issues involving the child, neither the parties nor the child live in Florida.
Additionally, the parties own no property in Florida, have no family living in
Florida, have no ties to Florida, and have not identified any Florida witness. In
short, Florida has little or no connection to the parties or the subject litigation.
And, just as the Florida Supreme Court warned in Kinney, Tan has admitted that
he filed his dissolution of marriage petition in Florida and wishes to keep the
portion of the case involving the child in Florida, rather than litigating the case in
New York, because he believes Florida substantive law will provide him with a
more favorable result than if those issues are resolved in New York, where the
child and legal father, who was judicially granted sole custody of the child, reside.
Our analysis is directed by sections 61.515 and 61.520, Florida Statutes
(2015). Under section 61.515(1), the trial court in the instant case has exclusive
and continuing jurisdiction to make child custody determinations 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
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(b) A court of this state or a court of another state determines that the
child, the child’s parent, and any person acting as a parent do not
presently reside in this state.
It is undisputed that the child, the child’s parent(s), and any person acting as
a parent do not presently reside in Florida and have not resided in Florida for over
a year. Tan has not resided in Florida since approximately October 15, 2015, and
he currently resides in London. DeStefanis and the child moved back to New York
on or about March 5, 2016, where they have continuously lived since leaving
Florida. Thus, on March 30, 2017, when the trial court conducted the evidentiary
hearing on DeStefanis’ motion to dismiss based on forum non conveniens, it had
been over a year since the parties and the child had resided in Florida.
Although it appears obvious that, based on these undisputed facts and
pursuant to section 61.515(b), the trial court does not have exclusive jurisdiction to
make child custody determinations, the trial court has not yet made that
determination. We, therefore, treat the trial court’s jurisdiction as exclusive, and
analyze section 61.520 under the lens of exclusivity.
Suit was brought under the UCCJEA, which contains a specific forum non
conveniens provision, section 61.520. Because the UCCJEA contains a specific
forum non conveniens provision, that provision controls, rather than the common
law forum non conveniens on which Kinney is based. See Corio v. Lopez, 190 So.
3d 1152, 1153 (Fla. 5th DCA 2016) (holding that the specific venue statute for
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paternity actions displaces the more general statute). However, even if we were to
review DeStefanis’ motion under the Kinney factors, we would conclude that the
trial court abused its discretion by denying DeStefanis’ motion to dismiss on the
basis of forum non conveniens under that analysis as well.
We now address the specific forum non conveniens provision under the
UCCJEA, section 61.520. Section 61.520 permits a court in this state that has
jurisdiction to make a child custody determination to “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(1). Section 61.520(2) requires the court to consider all relevant factors, but
lists several factors that the court must consider. Section 61.520(2) provides as
follows:
(2) Before determining whether it is an inconvenient forum, a court
of this state shall consider whether it is appropriate for a court of
another state to exercise jurisdiction. For this purpose, the court shall
allow the parties to submit information and shall consider all relevant
factors, including:
(a) Whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the parties
and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the
state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
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(e) Any agreement of the parties as to which state should assume
jurisdiction;
(f) The nature and location of the evidence required to resolve the
pending litigation, including the testimony of the child;
(g) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the evidence;
and
(h) The familiarity of the court of each state with the facts and
issues in the pending litigation.
The trial court correctly dispensed with subsections (a), (d), (e), (g) and (h),
as there were no allegations of domestic violence, agreement by the parties,
concern over the financial ability of either party to litigate the case in either Florida
or New York, or the ability of the New York court to resolve the child custody
issues. We therefore address the findings as to subsections (b), (c), and (f).
The trial court found under subsection (b) that when the action commenced,
DeStefanis and the child had only resided outside the state of Florida for two
weeks. While that finding is correct, we find that the trial court erred by failing to
consider that the Petitioner, Tan, left Florida for London on October 15, 2015,
months before he filed his petition, and has never returned, and more importantly,
that at the time of the hearing, DeStefanis and the child had been living in New
York for over a year. The record reflects that the child was born in Missouri, lived
in New York before living in Florida for ten months and then returned to New
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York. We, therefore, conclude that the trial court failed to comply with section
61.520(2)(b) by failing to consider fully “[t]he length of time the child has resided
outside this state.”
We also find no support in the record for the trial court’s determination
under section 61.520(2)(f) that “[t]he nature and location of the evidence required
to resolve the litigation includes witnesses and documents in both jurisdictions.”
Tan has not been able to identify any witness or evidence presently located in
Florida. The child’s genetic and legal father, caretakers, nanny, pediatrician, and
school are all in New York.
Lastly, when the trial court considered the distance between the trial court in
Florida and the trial court in New York, it concluded that the distance that the
parties would have to travel would “not impose an impediment.” See §
61.520(2)(c). However, the issue is not whether having to fly to Miami from New
York for hearings and other proceedings would impose an impediment for
resolution of child custody. The issue is whether New York, where DeStefanis and
the child permanently reside, would be a more convenient forum than Florida. Tan
resides in London and will have to commute regardless of whether the lawsuit is
litigated in Miami or New York. On the other hand, it would certainly be more
convenient for DeStefanis and the New York witnesses to appear in New York
where they reside rather than travel to Miami for hearings.
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Because neither the parties nor the child have resided in Florida for over a
year prior to the hearing conducted by the trial court on DeStefanis’ motion to
dismiss; the legal parent and child currently reside and have resided in New York
since they left Miami on March 5, 2016; Tan has not resided in Florida since
October 15, 2015; neither party has identified a single witness or any evidence
located in Florida; and neither party has a significant connection to Florida (they
own no property, have no business, and have no relatives living in Florida), we
conclude that the trial court abused its discretion by continuing to exercise its
jurisdiction over the child custody issues and denying DeStefanis’ motion to
dismiss under section 61.520. According, we reverse the trial court’s order
denying DeStefanis’ motion to dismiss pursuant to section 61.520.
Reversed and remanded.
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