ELIZUNDIA v. ELIZUNDIA (2002)

Monica V. Cabrero de Elizundia appeals from two orders denying her motions to dismiss a petition for child custody filed by Oscar Elizundia.   For the following reasons, we reverse.

 At the time Mr. Elizundia's petition was filed, a proceeding concerning the custody of the children was already pending in Mexico. “When the courts of more than one state have jurisdiction, priority in time of filing ordinarily controls which state shall proceed with the action so long as the court having such priority is ‘exercising jurisdiction substantially in conformity with this act.’ ”  Hickey v. Baxter, 461 So.2d 1364, 1369 (Fla. 1st DCA 1984)(quoting § 61.1314(1), Fla. Stat. (1983)).

 The parties do not dispute that Mexico had priority based on time of filing.   Therefore, this case turns on whether the Mexican court exercised jurisdiction.   On February 5, 2002, the trial court entered an order denying Ms. Elizundia's first motion to dismiss.   At that time, it was arguably unclear whether the Mexican courts had exercised jurisdiction.   However, on February 18, 2002, an appellate court in Mexico issued an order containing the following clause:

Regarding the custody of the minor children ․ the following is added:  The delivery of the minors to their mother, ․ whom should have legal custody of them, as well as the setting of the rules of the parental visitation regime will be agreed upon in the phase of the execution of this judgment.

Shortly thereafter, Ms. Elizundia filed a Second Motion to Dismiss or Abate Petition for Child Custody.   On February 26, 2002, the trial court entered an order denying this motion.   As the Mexican courts had clearly exercised jurisdiction by this time, the trial court should have granted the second motion to dismiss.^*  Accordingly, the trial court's order of February 26, 2002, is reversed and the case is remanded with directions to grant Ms. Elizundia's Second Motion to Dismiss or Abate Petition for Child Custody.

FOOTNOTES

FOOTNOTE.   We find it unnecessary to address the February 5, 2002, order denying the motion to dismiss.

PER CURIAM.