### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA F OURTH D ISTRICT

VITALIY KUSAYE V , Appellant,

v.

SVETLANA KUSAYE V , Appellee

.

No. 4D 20

- 2576

[ April 21, 2021 ]

Appeal of nonfinal order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Michael Davis , Judge; L.T. Case No. FMCE20

- 009365

.
Steven Veinger of Law Office s of Steven Veinger, P.A., Aventura, for appellant.

No brief filed on behalf of appel l ee.

M AY , J.

A f ather appeals a non

- final circuit court order denying hi s motion to dismiss for forum non conveniens. He argues the trial court erred in denying his motion to dismiss because it failed to consider the Kinney 1
factors in rendering its decision. We agree and reverse.

The mother filed a p etition for s upport and other r elief in Broward County, Florida . The parties were divorced in 2018 in Samara, Russia. They have a daughter who was born in New York on August 12, 2015, has never lived in Florida, and currently resides with the m other in Samara, Russia. The f ather has resided in Florida since moving to Broward County from New York in 2019.

The p etition claims that “[n]o child support was addressed or ordered in the divorce.” The p etition seeks retroactive child support, health

1 Kinney Sys., Inc. v. Cont ’ l Ins. Co. , 674 So. 2d 86 (Fla. 1996)

.2 insurance for the m other and child, and asks for the f ather to maintain life insurance to cover the ch ild support obligation.

The f ather moved to dis miss f or forum non conveniens

, pursuant to Florida Rule of Civil Procedure 1.061. 2 The m otion noted the “entire history of th is case is outside of Florida.” The child was born in New York, the m other and child have never visited Florida

, and the mot her and child moved to Russia from New York in August 2017. T he m otion included an official translated copy of the Russian divorce judgment, which provide d that the f ather was responsible for “child support,” but no other details.

The f ather ’s motion analyzed the four Kinney factors and argued that Russia is an adequate alternative forum, the private interests of the parties favor the Russian forum, the public interest is bet ter served in Russia, and the m other could reinstate the action in Russia.

The m other responded a nd noted the Russian divorce judgment did not award child support or reserve jurisdiction to do so. She alleged th e f ather actively avoided service of proc ess when she tried to initiate the instant action in New York. A n attached Return of Non

- S ervice details the numerous attempts to serv e the f ather with the summons , which included
t he process server contact ing the f ather by phone and text message and info rm ing him he must accept service . T he f ather continued to avoid the process server. The day after the process server made his first service attempt, the f ather moved out of his New York residence to Florida.

The m other also evaluated the Kinney factors and argued : (1) th e f ather misrepresented the first prong ; (2) he was arguing against his self

- interest because he would have to travel to Russia ; (3) any Russian child support judgment would have to be enforced in Florida anyway ; and (4) if the action i s reinstated in Russia

, the Russian court may not have jurisdiction.

T he trial court held a hearing on the f ather’s m otion. The parties raised the same arguments. The f ather noted he filed a claim in the Russian court for child visitation and child su pport on October 29, 2020, so he had already submitted to its jurisdiction. Without evidence, the m other contended th e fa ther’s Russian claim was rejected because the payor cannot file for child support on himself and Russian courts will not proceed on child support issues when the payor does not reside in Russia.

2 Technically, Rule 1.061 does not apply in family law cases. See Varchetti v. Varchetti , 302 So. 3d 408, 409 (Fla. 4th DCA 2020 ) . However, the federal doctrine of forum non conveniens and its factors were adopted in Kinney and codified in Rule 1.061

. See Kinney

, 674 So. 2d at 93 n.6.3 The trial court commented that “[i]t’s odd” that the Russia n court entered the divorce judgment requiring the f ather to provide child support without entering a child support order and concluded that “the Russian court has ceded jurisdiction on child support by not entering the order.” The court did not address e ither parties’ arguments or the Kinney factors. The trial court denied the m otion and entered a written order finding the Russian court did not decide child support matters or reserve jurisdiction and that the forum is proper in Broward where the f ather r esides.

The father now appeals.

“The standard of review regarding a trial court’s decision to dismiss a case under the doctrine of forum non conveniens is abuse of discretion.” S2 Glob

. , Inc. v. Tactical Operational Support Servs

. , LLC , 119 So. 3d 128 0, 1282 (Fla. 4th DCA 2013).

The f ather argues the trial court abused its discretion in denying his

m otion. He suggest s the court “misapplied and failed to meaningfully analyze the Kinney factors

. ” We agree.

I n Kinney Sys tem , Inc.

, our supreme court set forth a four

- step analysis for determining whether an action should be dismissed based on forum non conveniens

. 674 So. 2d at 90. It provided:

[1] As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a stro ng presumption against disturbing plaintiffs ’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a .

. . forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Id. (quoting Pain v . United Techs. Corp. , 637 F.2d 775, 784

– 85 (D.C. Cir. 1980) ) (alteration in original)

.

“The failure of the trial court to address the Kinney factors would generally result in a reversal and remand to allow the trial court to perform4 an analysis pursuant to Kinney .” R.J. Reynolds Tobacco Co. v. Carter , 951 So. 2d 105, 107 (Fla. 3d DCA 2007)

. We have reversed orders denying a motion to dismiss for forum non conveniens where “the trial court did not engage in [the Kinney ] analysis, either at the hearing or in its written order of denial.” Charles v. McMahon , 916 So. 2d 1013, 1014 (Fla. 4th DCA 2006)

.

Here , the trial court never comment ed on the Kinney factors at the hearing or in its written order. We must therefore reverse and remand for the trial court to analyze the Kinney factors and, if necessary, hold an evidentiary hearing.

Reverse d and remand ed

.

L EVINE , C.J. , and F ORST , J. , concur.

* * *

Not final until disposition of timely filed motion for rehearing.