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Topic v. Topic

Florida Court of Appeals, Third District

June 7, 2017

Marion Tomislav Topic, Appellant,
v.
Tamar Verduga Topic, Appellee.

          Not final until disposition of timely filed motion for rehearing.

          An Appeal from a non-final order from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-19321, George A. Sarduy, Judge.

          A.J. Barranco & Associates, P.A., and A.J. Barranco, Jr. and Melissa Acosta Rodriguez; Holland & Knight, LLP, and Rodolfo Sorondo, Jr. and Rebecca M. Plasencia, for appellant.

          Coffey Burlington, and Albert G. Caruana; Greene Smith, P.A., and Cynthia L. Greene, for appellee.

          Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.

          LAGOA, J.

          Appellant Marion Tomislav Topic (the "Husband") appeals from the trial court's non-final order denying as untimely his motion to dismiss on the grounds of forum non conveniens. Because we find that the Husband's motion to dismiss was not timely filed in accordance with Florida Rule of Civil Procedure 1.061(g), we affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This interlocutory appeal arises from a dissolution of marriage action between the Husband and Appellee Tamar Verduga Topic (the "Wife"). Both Husband and Wife are citizens of Ecuador, and were married on December 16, 1991, during a business trip to Miami. The newlyweds returned to Ecuador and throughout their marriage, the couple lived and worked in Ecuador. In early 2013, the Husband abandoned the marital home in Ecuador.[1]

         On August 10, 2014, the Husband notified the Wife in writing that he was seeking "dissolution of the community property." The Husband did not and could not file a divorce action in Ecuador because, at the time, there was a three year waiting period before a person who left the marital home could seek a divorce. Shortly thereafter, the Wife flew to Miami and, on August 12, 2014, she filed a Petition for Support Unconnected with Dissolution of Marriage, pursuant to section 61.09, Florida Statutes (2014).[2]

          On August 13, 2014, the Husband was personally served in Florida. On September 24, 2014, the Husband, by special appearance, filed a motion to dismiss the Wife's petition for lack of subject matter jurisdiction, lack of personal jurisdiction, and for "failure to file a maintenable action under Florida law." In support of his motion, the Husband filed a memorandum of law and sworn affidavit. On February 20, 2015, the Husband filed an Amended Motion to Dismiss.

         On July 1, 2015, the Wife amended her petition for maintenance under section 61.09 in order to seek a dissolution of the marriage. On July 20, 2015, the Husband filed a motion to strike service of process and another motion to dismiss, raising for the first time the defense of forum non conveniens. On October 14, 2016, the Husband filed an amended motion to dismiss on the grounds of priority and comity and in the alternative to abate or stay the proceedings. While various scheduling and procedural issues delayed the case, the Husband's various motions to dismiss were eventually scheduled for an evidentiary hearing to commence on December 5, 2016.[3]

         On the first day of the evidentiary hearing, the Husband withdrew all his motions to dismiss noticed for the evidentiary hearing except for his motion to dismiss based on forum non conveniens, and he proceeded solely on that motion.[4]In opposition to that motion to dismiss, the Wife argued that the Husband's forum non conveniens motion was untimely. Specifically, the Wife argued that Florida Rule of Civil Procedure 1.061(g) requires that "[a] motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party." (emphasis added).

         Initially, the trial court denied the Wife's timeliness challenge and proceeded forward with the evidentiary hearing. On the third and final day of the evidentiary hearing, the trial court reconsidered the Wife's timeliness challenge.[5]In its written order, the trial court denied the Husband's motion to dismiss as untimely because it was not raised within 60 days of service of process of the Wife's original section 61.09 petition. In addressing the untimeliness argument, the trial court found that "[i]t is undisputed that personal service of process of Wife's August 12, 2014 Petition for Alimony Unconnected to Divorce was made on Husband on August 13, 2014, in Miami-Dade County, Florida, while he was voluntarily in Florida looking at colleges with the parties' son. It is undisputed that the first time Husband ...


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