Ashley Knapp v. Brian Knapp , 266 So. 3d 224 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2869
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ASHLEY KNAPP,
Appellant,
v.
BRIAN KNAPP,
Appellee.
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On appeal from the Circuit Court for Bradford County.
Stanley H. Griffis, III, Judge.
February 28, 2019
WINOKUR, J.
Ashley Knapp (the former wife) appeals a final judgment
dissolving her marriage with Brian Knapp (the former husband),
entered in the Circuit Court for Bradford County. We agree that
the trial court erred in computing the former husband’s child
support obligation, which compels reversal. 1
1 We reject the former wife’s argument that the trial court
erred by denying her rehearing based on her allegation of
intrinsic fraud, as well as her argument that the trial court erred
in using the husband’s current income rather than his assumed
income following an anticipated promotion.
First, we find that the trial court did not err in rejecting the
former wife’s venue argument. 2 Before the final hearing, the
former wife alleged that she and her children lived in St. Lucie
County and that the former husband did not live in Bradford
County. But the fact that neither of the parties resided in
Bradford County was not, in itself, a basis to rule that venue was
improper there. In a dissolution of marriage action, venue lies
with “the single county where ‘the intact marriage was last
evidenced by a continuing union of partners who intended to
remain and to remain married, indefinitely if not permanently.’”
Crawford v. Crawford, 415 So. 2d 870, 870 (Fla. 1st DCA 1982)
(quoting Carroll v. Carroll, 322 So. 2d 53, 57 (Fla. 1st DCA
1975)); see also McGee v. McGee, 145 So. 3d 955, 957 (Fla. 1st
DCA 2014). Because the former wife never made this argument
to the trial court (at least prior to entry of the final order), she did
not preserve it for appellate review. 3 See Steinhorst v. State, 412
2 We are perplexed by the contention of the dissent that the
trial court failed to adjudge the former wife’s argument that
venue was improper in Bradford County. The former wife filed a
motion to dismiss the petition “due to improper jurisdiction,”
asserting that the divorce should be litigated in St. Lucie County.
In her answer to the petition, she referred to her motion “to
change Jurisdiction/ Venue.” It is clear that the former wife used
“jurisdiction” and “venue” interchangeably, and that the
“jurisdiction” motion contained, for the purposes of this appeal,
her venue argument. The trial court filed an order denying the
motion to dismiss, so there is no question that the court did
adjudge the former wife’s venue claim. Moreover, the dissent
embraces a position the former wife does not take on appeal: The
former wife’s brief argues that the court “summarily denied the
Motion without any explanation.” She never argues—as the
dissent now does—that “trial court did not explicitly rule on the
matter.”
3The dissent notes that the former wife alleged in her “legal
papers” that the parties “never lived as a married couple” in
Bradford County. This allegation could arguably have supported
a change of venue, however the “legal paper” was a motion for
rehearing after the final judgment was entered, and a claim that
venue is improper “must be stated specifically and with
2
So. 2d 332, 338 (Fla. 1982). (“[I]n order for an argument to be
cognizable on appeal, it must be the specific contention asserted
as legal ground for the objection, exception, or motion below.”);
Hentze v. Denys, 88 So. 3d 307, 310 (Fla. 1st DCA 2012) (“Because
the objection at the hearing was on grounds different than the
argument now put forth by the former husband, the present
argument is not preserved.”). Asking the court to transfer the
case to St. Lucie County because she lived there and it would
have been more convenient for her was not the same as arguing
that Bradford County was the improper venue for this action.
The court ruled on the argument before it, which was insufficient
to change venue. It was not obligated to schedule a hearing on
the improper motion to allow the former wife the chance to
change the argument to something that may have been proper.
Second, the former wife argues the trial court erred in
calculating child support. The former husband is on active duty
in the United States Army. He testified that he is only
guaranteed thirty days of leave per calendar year, but would
have additional days when not deployed overseas; he was to
deploy soon. The final judgment ordered timesharing during the
former husband’s thirty days of leave, and ordered that he should
make best efforts to take his leave while the children are not in
school. In addition to dividing time between the parents during
Spring, Christmas, and Thanksgiving breaks, the trial court
found that the former husband would receive additional leave
days from “time to time” when not deployed, and the parties
should work together to allow timesharing during these times.
The trial court calculated child support on the basis of the
children spending 120 overnights with the former husband and
245 with the former wife.
particularity in the responsive pleading or motion,” or it is
“deemed to be waived.” Fla. Fam. L. R. P. 12.140(b)(3) & (7). As
the former wife’s counsel acknowledged, the “law leaves no doubt
that a motion for rehearing is not the proper avenue to challenge
a trial court’s adverse ruling on venue . . . .” Nor is it the proper
avenue to raise the proper argument for the first time.
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The former wife argues that basing child support on the
former husband spending 120 overnights with the children is
unsupported by his testimony, as well as the final judgment’s
timesharing provisions. We agree. It is possible the former
husband may spend more than thirty overnights with the
children, but no evidence supports a number four times his
guaranteed leave. The trial court must correct the husband’s
child support obligation by using a timesharing figure supported
by competent, substantial evidence.
REVERSED and REMANDED.
WINSOR, J., concurs; MAKAR, J., dissents with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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MAKAR, J., dissenting.
The former wife—acting pro se—did almost all she could to
present and argue that venue in this case should be transferred:
she raised it in her answer/counter-petition (stating “Venue is not
proper in Bradford County, Florida.”), filed a separate motion
seeking transfer and a hearing, raised the issue at the final
hearing, and—after hiring legal counsel—moved for rehearing.
But the venue transfer issue was never explicitly addressed or
ruled upon; the trial court only ruled on its “jurisdiction,” not
whether venue was proper or ought to be transferred.
The former wife was acting pro se, and used the words
“jurisdiction” and “venue” interchangeably at times, but her legal
filings made it obvious throughout that she was seeking to move
the case from Bradford County (where the former husband visits
his mother sporadically when not deployed in his military
position) to St. Lucie County (where the former wife and children
have continuously lived for two years and where she would be
subject to suit). § 47.011, Fla. Stat. (2019). The wife’s pro se plea,
that the case be lodged in the county where she and the children
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reside (and where a local court can oversee a parenting plan and
settlement agreement), versus in a county a four-hour drive
away, where the former husband doesn’t live and only
occasionally visits his mother (and where, according to the former
wife’s legal papers, the former wife and former husband “never
lived as a married couple” thereby precluding venue in the first
instance; that they were married there doesn’t support a finding
that they lived there), see Carroll v. Carroll, 341 So. 2d 771, 772
(Fla. 1977) (venue lies in “county were both partners last present
with a common intention to remain married”)), presented a
meritorious venue question for the trial court’s consideration, one
to which the former husband’s lawyer did not even respond
(former wife had written the lawyer, making clear she sought a
change of venue) and one that was entitled to be liberally
construed given her pro se status. Ezem v. Fed. Nat. Mortg., 153
So. 3d 341, 343 (Fla. 1st DCA 2014) (“Because [litigant] is pro se,
despite their lack of “magic words,” [his] filings were entitled to
be liberally construed to seek the proper relief. . . . But the trial
court simply denied the motion.”).
Because the trial court did not explicitly rule on the matter
and thereby made no determination under the applicable
standards, see McGee v. McGee, 145 So. 3d 955, 957 (Fla. 1st DCA
2014); §§ 47.011, 47.122 & 61.13(2)(d), Fla. Stat. (2019), I would
reverse and require the issue of venue to be adjudged in the first
instance. Nothing in the current record supports that venue in
Bradford County is proper; if nothing changes on remand, the
case should be transferred to St. Lucie County.
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Jonathan M. Galler of the Law Office of Jonathan M. Galler,
P.A., Boynton Beach, for Appellant.
No appearance for Appellee.
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