Opinion
No. 95-0162.
October 5, 1995. Rehearing and Rehearing En Banc Denied January 10, 1996.
Appeal from the Circuit Court, Palm Beach County, John L. Phillips, J.
Elaine Johnson James of Nason, Gildan, Yeager, Gerson White, P.A., West Palm Beach, for petitioner.
John T. Mulhall, III and Lori S. Weiss of Rutherford, Minerley Mulhall, P.A., Boca Raton, for respondent.
The petition for writ of certiorari is denied. We do not resolve, or consider, the issue concerning jurisdiction addressed in the dissenting opinion. We comment on it here only to indicate that the legal effect of the parties' visa status, although apparently raised in the trial court, has not been asserted in this court as a basis for granting relief from the trial court's denial of a stay while a dissolution proceeding, initiated by Petitioner, remains pending in Germany.
We recognize that we have discretion to consider the question of trial court jurisdiction notwithstanding that it is not raised. However, there are a number of factual allegations in the record that militate against our resolving that issue at this time. We note several: this action, initially for maintenance and later amended to seek dissolution and related relief, was filed prior to that in Germany and there is some question of Respondent's residency status in Germany following the parties' separation; the parties' long term residency in this jurisdiction; the parties' son's attendance, since 1988, at local schools; the parties' making Boca Raton their primary home since 1983; the parties were married in the United States and own other property here; and the joinder in this suit of the husband's Florida corporations, one of which owns the family home. We also note that Petitioner may not have been entitled to file in Germany at the time he did so, as the parties had not been separated for one year as required by German law. However, we recognize that the latter issue has been resolved in Germany adversely to Respondent during the pendency of this appeal, as the one year separation requirement has since been met by the passage of time.
In denying relief, we conclude only that Petitioner has not demonstrated a departure from the essential requirements of law or an abuse of trial court discretion in its denying a stay. Siegel v. Siegel, 575 So.2d 1267 (Fla. 1991); Maraj v. Maraj, 642 So.2d 1103 (Fla. 4th DCA 1994). Although obviously the parties' visa status is a significant material fact to be considered, we do not determine here whether the holding of a limited visa precludes dissolution relief, notwithstanding other material evidence demonstrating permanent residency, by a per se application of the visa terms.
STONE and STEVENSON, JJ., concur.
WARNER, J., dissents with opinion.
I dissent. I would hold that Florida has no jurisdiction over the dissolution of this marriage. All of the parties, husband, wife and child, possess tourist visas to stay in this country which enable them to remain in the United States for six months at a time, so long as they leave the country at least once during that period. The parties' strict observance of the visa's requirements compel a finding that, as a matter of law, the jurisdictional requirement of section 61.021, Florida Statutes (1993), cannot be met. Other cases involving resident aliens, political refugees, or those remaining illegally after the expiration of a visa are not on point.
Even if Florida does have jurisdiction, I do not find that Maraj v. Maraj, 642 So.2d 1103 (Fla. 4th DCA 1994), compels the result here. I would apply Siegel v. Siegel, 575 So.2d 1267 (Fla. 1991), and grant the writ, ordering that Florida proceedings be stayed, recognizing the priority of the German courts to resolve this marriage dissolution of its citizens.