Thompson v. Plowmaker

FLETCHER, Judge. Former wife, Sylvia A. Thompson, appeals the transfer of venue of her petition for modification of child support [petition] from Dade County, her county of residence, to Polk County, the former husband’s county of residence and the county in which the final judgment of dissolution was entered in 1994. We reverse. Section 61.14, Florida Statutes (1995) provides that petitions to modify support provisions in settlement agreements or court orders may be brought in the “circuit court of the circuit in which the parties, or either of them, resided at the date of execution of the agreement or reside at the date of the application [for modification], or in which the agreement was executed or in which the order was rendered_” (emphasis added). See also § 61.17, Fla.Stat. (1995) (Support orders may be enforced “in the county in which the person [seeking to enforce] resides or in the county where the person charged with the payment ... resides or is found.”)(emphasis added). Thus, under the factual circumstances of this ease and the relevant statutes, the former wife’s petition could be properly brought in either Dade or Polk County. The fact that the 10th Judicial Circuit Court in Polk County previously considered a motion for contempt between the parties and reserved jurisdiction to award attorney’s fees in that action does not justify the trial court’s transfer of the former wife’s petition from Dade County. At the time the petition was filed in Dade County, there was nothing relating to the prior contempt action pending before the Polk County Court. The former husband’s motion for attorney’s fees, filed in Polk County after the wife filed her petition in Dade County, does not affect the former wife’s proper selection of her own county of residence as the forum to consider modification of child support as the Polk County Circuit Court’s reservation of jurisdiction for the purpose of considering attorney’s fees did not affect the finality of the contempt action. Thus, the trial court erred in ordering the [865] transfer of the petition to the 10th Judicial Circuit, Polk County due to “pending post-judgment matters.” See Torres v. Torres, 516 So.2d 11, 12 (Fla. 5th DCA 1987). Reversed and remanded for consideration of the petition for modification by the Dade County Circuit Court.