Posted by Nydia Streets of Streets Law in Florida Divorce

In what division of the court should a post-judgment family law case be filed? When there are civil remedies available to a party as a result of a contract entered in a divorce, for example, a party might wish to file in the general civil division rather than the family division because there may be certain remedies available. However, if a party files in the wrong division, should the case be dismissed? This was an issue in the case Chickering v. Bawa, 4D22-2180 (Fla. 4th DCA May 3, 2023).

In their divorce case, a marital settlement agreement was entered, part of which had provisions concerning real property owned by the parties. The agreement specifically gave the former husband the right to foreclose on the property if the former wife did not meet certain obligations with regard to refinancing. The agreement also contained the following clause “The Final Judgment of Dissolution of Marriage will provide that the Court shall specifically reserve jurisdiction with regard to the Parties hereto and this Marital Settlement Agreement and enforcement thereof.”

The former husband filed a complaint for foreclosure in the civil division, alleging the former wife failed to abide by the agreement to refinance or sell, and to keep the property in good condition. The former wife moved to dismiss arguing in part that the family division had jurisdiction over the matter, and not the civil division. The former husband was permitted to amend his petition. The former wife filed a second motion to dismiss, again arguing the family division had jurisdiction over the matter because of the reservation of jurisdiction in the final judgment. The trial court granted the former wife’s motion to dismiss and the former husband appealed.

The appellate court reversed, holding “‘All circuit court judges have the same jurisdiction within their respective circuits.’ [internal citation omitted]. ‘A circuit court . . . does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court.’ Id. A trial court ‘should not dismiss the case solely because it was filed in the wrong division.’ [internal citation omitted]. When a case is filed in the wrong division, the proper remedy is to transfer the case to the appropriate division. [internal citation omitted].”

The court also noted and concluded “Former wife argues that this line of case law is inapplicable to the instant case because former husband’s complaint was not dismissed with prejudice and because issues related to the [subject] property were already being litigated in the family court. However, former wife disregards that there can be collateral consequences of dismissal of this case. For example, in West, where the dismissal was also without prejudice, the claimant could not refile because the statutory thirty-day period for filing a petition to enforce a probate claim had expired. 126 So. 3d at 438-39. Further, a party whose claim is dismissed instead of transferred would be required to pay a second filing fee and could potentially be responsible for the prevailing party’s attorney’s fees. Thus, dismissal is not bereft of consequences.”

Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.