
    Rona E. YURGEL, n/k/a Rona E. Green, Appellant, v. Glenn G. YURGEL, Appellee.
    No. 89-0085.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1989.
    Rehearing Denied and Suggestion for Certification Granted Aug. 9, 1989.
    
      A. Matthew Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellant.
    Marc H. Brawer of Law Offices of Marc H. Brawer, Sunrise, for appellee.
   FASTRACK APPEAL

GARRETT, Judge.

Appellant-wife appeals the trial court’s order dismissing her supplemental petition for modification for lack of “subject matter” jurisdiction.

The Final Judgment, entered in March, 1986, among other things, dissolved the marriage and ordered the primary residence of their children to be with appellee-husband in New York. The children left Florida in August, 1986.

In December, 1986, during the pendency of an appeal of the Final Judgment, wife petitioned to modify the custody provisions of the Final Judgment and moved for emergency relief to stay the children’s return to New York after a Christmas vacation visit to Florida. The emergency relief was denied.

In May, 1987, this court affirmed the Final Judgment.

During the next six months, husband filed several notices to hear his “Motion to Dismiss Wife’s Petition for Modification” but no hearing was held.

In November, 1987, wife filed an “Amended Supplemental Petition for Modification.” Husband countered by filing another motion to dismiss which was denied in January, 1988.

Before the scheduled December, 1988 final hearing and after denying husband’s motion for summary judgment, the trial court on its sua sponte motion denied wife’s supplemental petition.

We affirm in part and reverse in part.

Florida Circuit Courts have “subject matter” jurisdiction over child custody proceedings. § 26.012, Fla.Stat. (1987).

Section 61.1308, Florida Statutes (1987), the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), determines whether a Florida Circuit Court can determine interstate child custody in a particular case. The basis to so decide is “home state” or “significant connection” jurisdiction.

The U.C.C.J.A. recognizes “home state” jurisdiction when Florida is home to the child at the time of the commencement of the initial or modification proceeding, or when Florida had been the child’s home within six months before commencement of the proceedings and the child is no longer in Florida at such commencement because someone claiming custody has taken the child out of this state but a parent remains in Florida. § 61.1308(l)(a), Fla.Stat. (1987).

The trial court correctly found the lack of “home state” jurisdiction (although mislabeled “subject matter” jurisdiction).

At the time wife filed her petition to modify, the children did not live in Florida.

Upon appeal of the final judgment the trial court lost jurisdiction to proceed further without this court relinquishing jurisdiction for a particular purpose. Fla. R.App.P. 9.600 & 9.130(f).

Wife’s petition to modify, although filed within six months of the children living in Florida, had no force or effect because it was filed during the time the appeal divested the trial court of jurisdiction. Soles v. Soles, 536 So.2d 367 (Fla. 1st DCA 1988). The amended petition filed over a year after the children left Florida did not relate back to the filing date of the petition to modify. To permit the amended petition to relate back would negate the rule granting exclusive jurisdiction in an appellate court during an appeal.

Having ruled against invoking “home state” jurisdiction, the trial court should have then considered whether “significant connection” with this state conferred jurisdiction to determine the interstate child custody. Since the appealed order does not indicate the trial judge addressed whether the best interests of the children would be served by a Florida court determining their custody, we remand with directions to give the parties the opportunity to be heard on what evidence exists in this state concerning the children’s present or future care, protection, training, and personal relationships. § 61.1308(l)(b), Fla.Stat. (1987).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED WITH DIRECTIONS.

DOWNEY, J., concurs.

WARNER, J., dissents in part and concurs in part with opinion.

WARNER, Judge,

dissenting in part and concurring in part.

I respectfully dissent from the reasoning of the majority opinion. This case does not raise a question of jurisdiction but of proper forum.

Section 61.1308(l)(a)2, Florida Statutes (1987), provides that the courts of Florida may exercise jurisdiction in a custody dispute if this state:

Had been the child’s home state within six months before commencement of the proceeding, and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.

The petition for modification in this case was filed during the pendency of the appeal, at which time the courts of Florida were still exercising jurisdiction over these parties and continued to exercise it until the termination of all of the appellate proceedings. I disagree with the conclusion reached in the majority opinion that the filing of the petition had no force or effect because it was filed during the time the appeal, and the trial court was divested of jurisdiction. While the trial court may not have had the ability to act on the petition, it does not change the time of “commencement of the proceeding.” Furthermore, even if we were to determine that the proceeding were not “commenced” because of the pendency of the appeal, the appeal itself gives the courts of Florida continuing jurisdiction over this cause. Therefore, I find that there was a basis for exercising jurisdiction under section 61.1308(1)(a)2; and the trial court did not have to consider whether it also had jurisdiction under section 61.1308(1)(b).

The real question in this case is whether or not the trial court should decline to exercise that jurisdiction because Florida is now an inconvenient forum. This must be considered under section 61.1316, Florida Statutes (1987). It is on those grounds, and not the issue of jurisdiction, upon which the trial court may consider declining to act in this matter. See Johnson v. Farris, 469 So.2d 221 (Fla. 2d DCA 1985). Therefore, I would reverse and remand for further proceedings, without prejudice to raising the question of inconvenient forum. The trial court:

[M]ay decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

§ 61.1316(1), Fla.Stat. (1987).

ON MOTION FOR REHEARING AND SUGGESTION FOR CERTIFICATION

BY ORDER OF THE COURT:

ORDERED that Appellant’s July 12, 1989 motion for rehearing and motion for rehearing en banc are denied.

ORDERED that Appellant’s July 12, 1989 Suggestion for Certification is granted. The following questions are certified to the Supreme Court of Florida: diction in a foreign state while the original state continues to exercise jurisdiction over the parties and the subject matter?

1) Is an appeal from a custody order in the lower court a “custody proceeding” within the meaning of the UCCJA so as to toll the vesting of “home state” juris-

2) Does the filing of a petition for modification of custody in the lower court, within six months of the children residing in Florida, and while an appeal is pending in Florida, toll the vesting of “home state” jurisdiction in a foreign state? and

3) Is relinquishment of jurisdiction pursuant to Rule 9.600(b) of the Florida Rules of Appellate Procedure a condition precedent to the preservation of continuing “home state” jurisdiction?  