Perelman v. Perelman

Perelman v. Perelman, 2013 WL 5807358

It is not uncommon here in South Florida for cases to arise that center around disputes about where the decedent was domiciled at their death, given how many retirees move here at the end of their lives.  This case centered around a will contest between a son, arguing that his mother was a domicile of Pennsylvania, and a husband, arguing that his wife was a domicile of Florida.  

The issue on appeal centered around whether the Florida trial court should have stayed the Florida proceeding under the principle of priority.  The "principle of priority" is the idea that the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with this case.  It is not a mandatory principle, however absent extraordinary circumstances, it is an abuse of discretion to fail to respect the principle of priority.

The Court explained that the exercise of jurisdiction by the foreign court will trigger priority.  It emphasized the idea that, "The ball is rolling, so to speak, and will not be stopped until the court issues an order or the plaintiff dismisses the lawsuit."  In re Guardianship of Morrison, 972 So.2d 905, 908 (Fla. 2d DCA 2007).  So when does a foreign court exercise its jurisdiction?  Within the state, the Florida courts have held that a court exercises its jurisdiction when service is perfected.  But when dealing with a foreign court, the Court held that it must look at the law of the foreign jurisdiction to determine when the court exercised its jurisdiction.

Here, the Court held that Pennsylvania first exercised jurisdiction when it issued a notice to the husband's counsel stating that the wife's Pennsylvania will would be probated unless he filed a formal caveat.  Since the "ball was rolling" in Pennsylvania at that point, which was before the husband filed his Florida petition, Pennsylvania exercised its jurisdiction first.  

As mentioned above, since the principle of priority is not mandatory, the Court then had to consider whether the trial court abused its discretion by failing to respect the Pennsylvania proceeding.  Since the trial court did not make a finding of extraordinary circumstances that would justify refusing to apply the principle of priority, nor that the Pennsylvania proceeding would cause undue delay, the decision was remanded for the trial court to issue a stay pending the resolution of the Pennsylvania probate proceeding.

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