final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County Lower Tribunal No. 14-19321, George A.
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.
Burlington, and Albert G. Caruana; Greene Smith, P.A., and
Cynthia L. Greene, for appellee.
SUAREZ, C.J., and LAGOA and LOGUE, JJ.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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
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
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.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).
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.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 ...