Winning the “Race to the Courthouse”: The Principle of Priority
When two jurisdictions have concurrent jurisdiction over a dispute, the “principle of priority” generally applies to allow the first-filed action to proceed.1 As explained in Bedingfield v. Bedingfield, 417 So. 2d 1047 (Fla. 4th DCA 1995), rev. dism., 427 So. 2d 736 (Fla. 1983), receded from on other grounds, Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999), in its narrowest sense, the principle applies only to courts “within one sovereignty.” However, although the “principle is not applicable between sovereign jurisdictions as a matter of duty,” as a matter of comity a court may, in its discretion, stay a proceeding before it “on the grounds that a case involving the same subject matter and parties” is pending elsewhere.2
Whether as a matter of duty or as a discretionary matter of comity, the principle of priority applies to all types of cases. Although there have been a large number of divorce and family law cases that have analyzed the principle, such as the cases previously cited, the principle can be applied in any other type of case as well, such as commercial disputes3 or probate matters.4
As a matter of comity, the principle of priority is applied to courts of sister states as well as to international questions.5 The Florida Supreme Court, in Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991), recognized the general principle of priority, but qualified it slightly, stating that in a discretionary scenario, a stay of the later action would ordinarily, but not necessarily, be the correct result. Citing Schwartz v. DeLoach, 453 So. 2d 454, 455 (Fla. 2d DCA 1984), the Siegel court opined that undue delay in the first-filed action could justify denying a stay in the later action, and that unstated “additional factors or circumstances” might also warrant a denial of a stay in the later action.6
More recently, the “extraordinary circumstances” allowing for an exception to the “ordinary” result under the principle of priority were found to exist in Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005). In that probate case, the decedent moved to Florida so that his granddaughter could take care of him, and executed a will in Florida describing him as a Florida resident. After the decedent’s death, three years after his move to Florida, notice of administration of the Florida will was sent to the decedent’s daughter in Maryland and she won the “race to the courthouse” by filing a petition to probate the Florida will there, claiming the decedent was actually a Maryland resident. The personal representative in the Florida estate then filed a petition to establish venue in Florida, and the daughter relied on the principle of priority to seek a stay in favor of the Maryland proceedings. The Florida court refused to stay the Florida proceedings, and the appellate court affirmed. The appellate court noted that the Maryland court had not admitted the will to probate, that the will had been admitted in Florida, that notice to creditors had been filed, that creditors had made claims, that the federal estate-tax return was due, and that entering a stay would result in a substantial increase in the cost of administration.
An analogous situation was presented in a family law context in Maraj v. Maraj, 642 So. 2d 1103 (Fla. 4th DCA 1994). In this case, the husband filed a motion to dismiss or abate a Florida divorce action because he had previously filed a divorce suit in Trinidad and Tobago. The trial court refused to stay the Florida proceeding and the appellate court affirmed, noting that, inter alia, though the parties originally had resided in Trinidad, they had been in Florida since 1987. In addition, only one of the parties’ children resided in Trinidad, the family owned and operated a Florida business, and the family owned substantial other property in Florida. The appellate court held that under those facts, and the trial court’s acceptance of the wife’s contention that the Florida action sought more extensive relief and raised different issues than the prior foreign suit, the trial court had not abused its discretion in refusing to stay the suit.
The Maraj court’s consideration of the difference in issues between the two competing suits raises the question of just how “similar” the two suits have to be in order for the principle of priority to be applicable. While there is no bright-line rule, Florida courts do not require both cases to involve the exact same cause of action or legal remedy. Rather, the operative question is whether the issues in the two cases are “substantially” similar.7
In the family law context, the requirement of similarity is exemplified by divorce suits and those suits seeking remedies less than an actual divorce. Florida courts, including the Florida Supreme Court, have held that while separate maintenance and divorce suits clearly are not identical, they are sufficiently similar for the principle of priority to apply between the two types of cases.8 Case law from other American jurisdictions is in accord.9
As the application of the principle of priority is discretionary, in both an interstate and an international scenario, general considerations of equity and substantial justice may be argued in contending that a Florida court should exercise its discretion regarding the principle of priority in a given case. In Maraj, the appellate court noted that the trial court properly denied a motion for stay of the Florida proceedings, even though the wife did not claim that deferring to the Trinidadian proceedings would result in injustice. Suppose, however, that a party had first sued for divorce in a religious court in a foreign country in which women’s rights were markedly different than those accorded in Florida, such as in a court enforcing Islamic sharia law. Under general comity principles, Florida courts can refuse to apply or recognize foreign law that is contrary to Florida public policy.10 Thus, in interstate or especially international scenarios, a Florida litigant who has been “beaten to the courthouse” in a foreign court would do well to research the differences in foreign law compared to Florida law in order to discern if applying the principle of priority would arguably violate Florida public policy.
It must also be remembered that the principle of priority presupposes that both courts in fact have concurrent jurisdiction over the dispute. If the court in the first suit does not at least have subject-matter jurisdiction, the principle of priority does not even come into play.11 However, if a Florida plaintiff who is first sued elsewhere participates in the first suit, and the foreign court determines that it does have jurisdiction, such litigant is not entitled to an evidentiary hearing in the later Florida suit challenging the foreign court’s jurisdiction, as this has been held to be an improper “second bite of the apple.”12
Although the principle of priority appears straightforward enough, and in most cases will result in a stay of a later-filed proceeding, as noted above, the principle presupposes concurrent jurisdiction in both courts, which is not always present. Further, in interstate and international scenarios, the principle is discretionary, such that winning the “race to the courthouse” does not necessarily mean a subsequent suit will be stayed. In family law contexts, it must also be remembered that the principle of priority, being a matter of comity in most instances (where the two courts are not of the same sovereign), is a matter of common law, based on case precedent rather than statutory law. The adoption of uniform laws regarding family law matters, such as the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)13 and the Uniform Interstate Family Support Act (UIFSA)14 also impact the “race to the courthouse,” by specifying when a court has jurisdiction in the first instance, by containing “simultaneous proceedings provisions,” and by spelling out a court’s continuing jurisdiction.
Since both the UCCJEA and UIFSA define the subject-matter jurisdiction of signatory states’ courts to hear custody and support cases, respectively, both uniform acts affect the potential application of the principle of priority. The UCCJEA, in particular, is based around the concept of the “home state” of the child and family.
The UCCJEA defines a child’s “home state” thusly:
(7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.15
Initial child-custody jurisdiction under the UCCJEA is tied to a child’s home state, with some exceptions (which, in practice, do not occur frequently):
(1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and:
1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).16
UIFSA contains a definition of “home state” that is almost identical to the definition set forth in the UCCJEA.17 Thus, when the principle of priority is applied to litigation in a family law context, the six-month residency requirement of the “home state” concept can be determinative of whether both courts really do have concurrent jurisdiction.
For example, UIFSA contains a specific provision regarding simultaneous proceedings in other states, which in turn considers which state is the “home state”:
(1) A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state only if:
(a) The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;
(b) The contesting party timely challenges the exercise of jurisdiction in the other state; and
(c) If relevant, this state is the home state of the child.18
Under the above UIFSA provision, if a prior-filed support motion in another state exists, there is a very narrow “window” in which the Florida suit will not fall victim to the principle of priority — the Florida suit must be filed prior to the expiration of the time for filing a responsive pleading in the first suit brought in the other state. Further, in order for the Florida case to proceed, the jurisdiction of the other court must be “timely challenge[d]” in the other state, and, if children are involved, Florida must be their home state.
F.S. §88.2041(2) (2008) states the rule in the converse scenario: A first-filed Florida UIFSA case cannot proceed if the respondent, prior to the time for filing the responsive pleading in Florida, files his or her own UIFSA suit in another state, provided he or she has timely challenged the Florida court’s jurisdiction, and (if children are involved) the other state is the child[ren]’s “home state.”
Numerous provisions of the UCCJEA can also impact the issues raised by the principle of priority. First, unlike UIFSA, the UCCJEA has a provision specifically making the act applicable not only to situations involving other signatory states, but also to international scenarios involving custody suits in foreign countries. The generally applicable statutory rule is that Florida courts must treat foreign countries as if they were “a state of the United States” for UCCJEA purposes.19
Such foreign country custody determinations “must be recognized and enforced” in Florida UCCJEA proceedings — if such determinations were made “under factual circumstances in substantial conformity with the jurisdictional standards” of the UCCJEA.20 Thus, for example, the principle of priority might be inapplicable in a family law context where the stereotypical “Mexican quickie divorce” was filed prior to a Florida divorce suit, and child custody is sought in both cases. Similarly, in contexts analogous to those previously mentioned under a possible “public policy” common law exception to the principle of priority, the UCCJEA provides that the UCCJEA “need not” be applied by a Florida court if a foreign country’s child-custody laws “violate fundamental principles of human rights.”21
Like UIFSA, the UCCJEA has a “simultaneous proceedings” provision as well. The UCCJEA provision, however, is closer to a codification of the principle of priority than is the UIFSA provision. The UIFSA provision provides a “window” (albeit a narrow one) for avoiding application of the principle of priority. On the other hand, under the UCCJEA, if another custody proceeding has been commenced in another state, and that state has jurisdiction “substantially in conformity” with the UCCJEA, then the Florida court, in most instances, may not proceed to hear child-custody and visitation issues:
(1) Except as otherwise provided in s. 61.517, a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520.22
The above statute, however, provides some narrow exceptions to the UCCJEA’s codification of the principle of priority. If the proceeding in the first state has been “terminated,” then a later-filed Florida proceeding may move forward.23 Further, if the first-filed custody proceeding is stayed, “because a court of this state is a more convenient forum,” then the Florida custody case may proceed.24 Thus, in Florida UCCJEA proceedings, where there are simultaneous proceedings elsewhere, Florida counsel should take whatever steps are necessary to apply for a stay, and make a forum nonconveniens argument before the foreign tribunal, if there is a factual basis for such a position.
The third and final exception to the UCCJEA’s codification of the principle of priority is when an emergency exists.25 An “emergency” exists sufficient for UCCJEA jurisdictional bases if “the child is present in this state and the child has been abandoned or it is necessary to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”26 Emergency jurisdiction is a necessarily limited concept though. If there has been a previous custody proceeding commenced in another state, any emergency order entered here must contain a specified “adequate” period of time during which the person claiming the emergency in Florida may seek an order from the court of the other state.27 The Florida emergency order expires when such order is obtained, or the specified time period expires.28
One other factor present in family law cases but not present in many other types of litigation, is the continuing nature of support and custody cases. This factor can impact the principle of priority because once subject-matter jurisdiction is obtained in a support or custody case, it is not easily lost, even though a case may not be actively litigated for long periods of time. Both UIFSA and the UCCJEA contain provisions that specifically prescribe the continuing jurisdiction of the courts of signatory states.29 These statutes make clear that these courts continue to have jurisdiction even when the child moves to a new “home state,” unless the child and both parents have left the state, or unless the original court determines that another state would be a more convenient forum.30 UIFSA adds a provision, not present in the UCCJEA, allowing “all the parties who are individuals” to a support suit to file “written consents” effectively terminating the jurisdiction of the original court.31
Thus, the common law principle of priority, its exceptions, and applicable provisions of the uniform acts are essentially designed to accomplish the same end — the avoidance of interjurisdictional conflict and the efficient use of both judicial and family resources. A family law practitioner who is familiar with these principles can help obtain the best result for his or her client, whatever the result of the “race to the courthouse.”
1 See, e.g., Bedingfield v. Bedingfield, 417 So. 2d 1047 (Fla. 4th D.C.A. 1982); Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991); Graham v. Graham, 648 So. 2d 814 (Fla. 4th D.C.A. 1995).
2 Bedingfield, 417 So. 2d 1050.
3 See, e.g., Mendez v. Dowelanco Indus., LTDA, 651 So. 2d 776 (Fla. 3d D.C.A. 1995); Banca Bilbao Vizcaya, S.A. v. Naiz, S.A., 615 So. 2d 233 (Fla. 3d D.C.A. 1993).
4 See, e.g., Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th D.C.A. 2005); see also McAnally v. Craig, 595 So. 2d 205 (Fla. 4th D.C.A. 1992) (holding, in action brought to determine entitlement to property in decedent’s estate, that dismissal with prejudice of one count of four-count complaint was error. Although property at issue in dismissed count was subject of suit that had been filed earlier in North Carolina, which was domicile of decedent, “it is possible that the North Carolina court might fail or refuse to determine entitlement to the assets in question. Thus, we find it appropriate to strike from the final judgment the ‘with prejudice’ aspect, so that the matter may be revisited again by a Florida court should entitlement not be satisfactorily resolved elsewhere.”).
5 See Hirsch v. DiGaetano, 732 So. 2d 1177, 1177-78 (Fla. 5th D.C.A. 1999) (quashing order denying stay where previous contract action involving same parties and causes of action was filed in Massachusetts and circumstances did not exist to justify denial of stay); Fried v. Bergman, 736 So. 2d 1281 (Fla. 4th D.C.A. 1999) (trial court should have applied “principle of priority,” and stayed Florida suit against corporate directors while prior case involving same subject matter and parties was pending in Georgia); Stock v. Stock, 677 So. 2d 1341 (Fla. 4th D.C.A. 1996) (holding that because Swiss custody action was pending prior to Florida custody action, Fla. Stat. §61.1314(1) would give Switzerland priority of filing if no agreement between courts could have been reached); Mendez v. Dowelanco Industrial, DA, 651 So. 2d 776 (Fla. 3d D.C.A. 1995) (Florida suit stayed in favor of Brazilian suit “involving the same parties and issues”); Banco Bilbao Vizcaya, S.A. v. Naiz, S.A., 615 So. 2d 233 (Fla. 3d D.C.A. 1993) (Florida suit stayed in favor of Spanish suit where “substantially same causes of action” were involved); Robinson v. Royal Bank of Canada, 462 So. 2d 101 (Fla. 4th D.C.A. 1985) (proceedings filed against petitioner in Florida should have been stayed in deference to prior and concurrent jurisdiction of Canadian court over essentially identical suit); Gillis v. Gillis, 391 So. 2d 772 (Fla. 3d D.C.A. 1980) (where request for child support was pending in England prior to former wife’s filing of identical action in Florida state court, “trial court should have exercised its sound discretion and stayed the Florida proceedings pending determination of the question in England,” to avoid duplication of proceedings).
6 Siegel, 575 So. 2d at 1272.
7 See, e.g., Banco Bilbao Vizcaya, S.A. v. Naiz, S.A., 615 So. 2d 233 (Fla. 3d D.C.A. 1993); Robinson v. Royal Bank of Canada, 462 So. 2d 101 (Fla. 4th D.C.A. 1985) (grant of stay is appropriate where two actions are pending simultaneously involving same parties and substantially same causes of action, and, thus, proceedings filed against petitioner in Florida should have been stayed in deference to prior and concurrent jurisdiction of Canadian court over essentially identical suit; holding that trial court clearly departed from essential requirements of law by refusing to decline jurisdiction as matter of comity).
8 See Martinez v. Martinez, 15 So. 2d 842 (1943) (where wife was served with summons in husband’s Pinellas County suit for divorce and custody of parties’ children and appeared in husband’s suit and secured counsel fees and alimony before husband was served with summons in wife’s Polk County suit for separatemaintenance and custody of children; circuit court of Pinellas County first exercised jurisdiction within rule that in case of conflict between courts of concurrent jurisdiction, the one first “exercising jurisdiction” acquires control to exclusion of other); Graham v. Graham, 648 So. 2d 814 (Fla. 4th D.C.A. 1995) (where petition for dissolution of marriage has been properly filed in another county or state before cause of action for separate maintenance unconnected with marriage; abatement of later-filed action is supported by principles of priority, comity, and wisdom and justice, to prevent unnecessary litigation and multiplicity of lawsuits).
9 See, e.g., Willbrook v. Worten, 278 P. 388 (1929); Westfall v. Westfall, 82 S.E.2d 487 (1954); Muniga v. Superior Court, 37 Cal. Rptr. 285 (1964).
10 See, e.g., Johnson v. Johnson, 676 So. 2d 458 (Fla. 5th D.C.A. 1996) (denying comity to English judgment for lump sum alimony where English court did not acquire jurisdiction over former husband in manner complying with American standards of due process); Maclaren v. Maclaren, 616 So. 2d 104 (Fla. 1st D.C.A. 1993) (The court did not abuse its discretion when it refused to grant comity to New Zealand decree pertaining to husband’s obligation to pay permanent periodic alimony to former wife. “[T]he New Zealand decree reflects on its face that the public policy of New Zealand regarding permanent periodic alimony [spousal maintenance] is dramatically different from that of Florida.”); Al-Fassi v. Al-Fassi, 433 So. 2d 664 (Fla. 3d D.C.A. 1983) rev. den., 446 So. 2d 99 (Fla. 1984) (principles of comity do not require recognition of foreign decrees that are offensive to Florida’s public policy that custody decision be based upon best interests and welfare of minor children; refusing to recognize custody decree of Bahamian court which did not consider length of time children had lived in stable environment, education of children, psychological stability of parents, or fiscal help of parents); Kittel v. Kittel, 194 So. 2d 640 (Fla. 3d D.C.A. 1967) (finding no abuse of discretion in trial court’s refusal to recognize “quickie divorce” obtained by husband in Mexico, where parties had always lived in Florida, and divorce was obtained on grounds [incompatibility] not recognized in Florida).
11 See Board of Trustees of Internal Improvement Trust Fund, etc. v. Mobil Oil Corp., 455 So. 2d 412 (Fla. 4th D.C.A. 1984), approved in pertinent part but otherwise quashed, Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339 (Fla. 1986) (involving “local action” rule regarding suits involving real property; competing courts were two courts within Florida); see also Sunshine State Service Corp. v. Dove Inv. of Hillsborough County, 468 So. 2d 281 (Fla. 5th D.C.A. 1985) (reversing stay of state court proceedings in favor of later-filed federal court suit; even if federal court suit had been filed first, federal court did not have concurrent jurisdiction).
12 See Chaddick v. Monopoli, 714 So. 2d 1007 (Fla. 1998).
13 Fla. Stat. §61.501, et seq. (2008).
14 Fla. Stat. §88.0011, et seq. (2008).
15 Fla. Stat. §61.503(7) (2008) (emphasis supplied).
16 Fla. Stat. §61.514(1) (2008) (emphasis supplied).
17 See Fla. Stat. §88.1011(4), (2008).
18 Fla. Stat. §88.2041(1) (2008) (emphasis supplied).
19 Fla. Stat. §61.506(1) (2008).
20 Fla. Stat. §61.506(2) (2008).
21 Fla. Stat. §61.506(3) (2008).
22 Fla. Stat. §61.519(1) (2008) (emphasis supplied).
23 Fla. Stat. §61.519(1) (2008).
24 Id. (emphasis supplied).
25 See Fla. Stat. §61.519(2) (2008) (when there are simultaneous proceedings, later-filed Florida proceeding must be stayed if examination of documents filed in prior proceedings shows that other state has UCCJEA jurisdiction, “[e]xcept as otherwise provided in s. 61.517,” the UCCJEA’s “emergency jurisdiction” provision).
26 Fla. Stat. §61.517(1) (2008).
27 Fla. Stat. §61.517(3) (2008).
29 Fla. Stat. §§88.2051, 61.515 (2008).
31 Fla. Stat. §88.2051(1)(b) (2008).
Luis E. Insignareshas been practicing marital and family law in Ft. Myers since 1989. He practices in all areas of complex marital and family law at both the trial and appellate levels. Mr. Insignares is a member of the executive council of the Family Law Section of The Florida Bar.
This column is submitted on behalf of the Family Law Section, Peter Gladstone, chair, and Laura Davis Smith and Ingrid Keller, editors.