SKELLY v. SKELLY (2019)

Darin Skelly (“Former Husband”) petitions this Court for a writ of prohibition, arguing that the circuit court erred in denying his motion to dismiss Angelle Skelly's (“Former Wife”) motion for temporary relief and petition for modification of child support. He argues that Former Wife lacked standing to seek modification and that the circuit court lacked subject matter jurisdiction to consider the request. We conclude that Former Husband has not established entitlement to the extraordinary relief requested.

Former Husband and Former Wife divorced in 2005. The 2005 final judgment of dissolution of marriage ordered Former Husband to pay child support for each of the couple's three minor children until the children “attain[ed] the age of 18, or otherwise [became] emancipated.” However, on March 21, 2013, the circuit court ratified an agreement of the parties that even though the middle child would turn eighteen on March 27, 2017, Former Husband would continue to pay child support for that child until June 1, 2017.

On February 17, 2017, Former Wife filed a supplemental petition to modify support for the middle child, alleging that the child had become disabled and dependent. The circuit court ordered Former Husband to provide child support for the middle child until November 2018. This Court reversed that order, holding that Former Husband's due process rights were violated when the circuit court referred the modification petition to a magistrate over Former Husband's written objection. Skelly v. Skelly, 257 So. 3d 150 (Fla. 5th DCA 2018). On remand, Former Husband again sought to dismiss the supplemental petition, arguing the trial court lacked subject matter jurisdiction to hear the petition and Former Wife lacked standing to seek modification of child support because the middle child was now an adult and no determination as to her dependency occurred prior to her turning eighteen. The circuit court denied the motion to dismiss.

Former Husband's challenge to the court's subject matter jurisdiction is properly raised in a petition for writ of prohibition. However, prohibition is an extraordinary remedy appropriate only where it is clear that a lower tribunal is without jurisdiction or is attempting to act in excess of jurisdiction.

Prohibition will not lie when a court having jurisdiction to decide its own jurisdiction makes an affirmative decision based on the court's determination of controverted facts. Mandico v. Taos Const., Inc., 605 So. 2d 850, 854 (Fla. 1992). Moreover, circuit courts in Florida “are superior courts of general jurisdiction, and nothing is intended to be outside their jurisdiction except that which clearly and specifically appears so to be.” English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977).

Here, Former Husband has not demonstrated the trial court is clearly proceeding in excess of its jurisdiction. While he appears to rely on Taylor v. Bonsall, 875 So. 2d 705, 710 (Fla. 5th DCA 2004), in support of his argument, he has not demonstrated that the circumstances of this case compel the same result. Thus, the record before this Court does not conclusively demonstrate the circuit court is acting in excess of its jurisdiction. As a result, we deny the petition for writ of prohibition without prejudice to Former Husband raising the jurisdictional argument on direct appeal.

Unlike Former Husband's subject matter jurisdiction argument, his challenge to Former Wife's standing in this context is not cognizable via a writ of prohibition. See, e.g., Godfrey v. Reliance Wholesale, Inc., 68 So. 3d 930, 931 (Fla. 3d DCA 2011) (denying defendant's petition for writ of prohibition “[b]ecause a lack of standing is insufficient to deprive a circuit court of subject matter jurisdiction”). As such, we treat the challenge as a petition for a writ of certiorari.¹

To obtain certiorari relief from the denial of his motion to dismiss, Former Husband must show “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on postjudgment appeal.” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). Irreparable harm required by the second and third elements is jurisdictional and must be found before considering whether there has been a departure from the essential requirements of the law. Holmes Reg'l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1284 (Fla. 5th DCA 2014) (citing Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012)).

Here, Former Husband has not demonstrated that the denial of his motion to dismiss causes him irreparable harm. First, the cost of continued litigation does not generally constitute irreparable harm. San Perdido Ass'n, 104 So. 3d at 353. Second, Former Husband's standing argument may be raised on direct appeal. As a result, we dismiss the petition for writ of certiorari. See Moore v. State, 135 So. 3d 462, 463 (Fla. 5th DCA 2014) (“If jurisdictional prongs two and three are not fulfilled, this Court should dismiss the petition rather than deny it.”).

PETITION FOR WRIT OF PROHIBITION DENIED; PETITION FOR WRIT OF CERTIORARI DISMISSED.

FOOTNOTES

1.   See Fla. R. App. P. 9.040(c) (stating that where party seeks improper remedy, cause will be treated as if proper remedy requested); Fla. R. App. P. 9.030(b)(2)(A) (stating that, other than as prescribed by rule 9.130, nonfinal orders of lower tribunal fall within district court of appeal's certiorari jurisdiction).

PER CURIAM.

COHEN, LAMBERT and SASSO, JJ., concur.