The Florida Court of Appeals in Johnson v. Johnson
James H. Johnson, III (Col. Johnson) was married to Kristina Johnson for twenty-three-years and they have a son who is currently fourteen. Mr. Johnson has served in the United States Army for several years and is the commander in Vicenza, Italy. Both Mrs. Johnson and the couple’s fourteen year old son lived on base with Mr. Johnson. Mr. Johnson was deployed to Afghanistan and on November 6th, 2010 Mrs. Johnson and the couple’s son left Italy to move to New York.
On November 10, 2011 Mrs. Johnson got an Action for Custody of the couple’s son that was unconnected to dissolution in the New York family court. On December 14th, 2010 Mr. Johnson filed an underlying action in Sarasota County, FL and included a parenting plan request. On December 16, 2010 Mrs. Johnson commenced the Dissolution of Marriage Action in the New York Supreme Court, where she also sought for custody of her son. Mr. Johnson declared Florida as his domicile, using his parents address since he had also used the same address to file his federal income taxes in Florida as a resident of that state and Mrs. Johnson as New York.
Col. Johnson filled out the required documents for Florida’s UCCJEA for his petition for dissolution. Mr. Johnson stated that his son had lived in Florida besides his travels to his father’s bases. His wife denied that statement and stated that she was “at all time a New York citizen and that the New York family court had jurisdiction over the son by virtue of her November 10, 2010, petition”, she moved to dismiss the Florida petition. New York never served a summons to Mr. Johnson.
Mr. Johnson moved for a hearing with the two New York courts by telephone so he would have a chance to be heard, present evidence and a legal argument. The hearing was held on February 17, 2011 between all three courts to exercise jurisdiction over the proceedings. Mr. Johnson had asked to be present by telephone to testify, but the call didn’t get put through. According to Section 61.511, Fla. Stat. (2010, the court “shall allow the parties to participate in the communication [and][i]f the parties elect to participate ..., they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.”
Since there was no sworn testimony, only legal argument t and proper notice of the hearing wasn’t given to Mr. Johnson that Mr. Johnson will be allowed to appear at a new UCCJEA hearing to determine his son’s home state, Mrs. Johnson can appear as well and give evidence.
Time has passed and their son has most likely established a home in New York. This is something the trial court will need to consider.
Labels for the post: child custody
Because Mr. Johnson was not properly served with a notice, his matter should be re-opened, which would also allow Mr. Johnson to appear at the hearing in order for him to make valid legal arguments. Furthermore, how could she commence an action for custody when Mr. Johnson was deployed on active duty?
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