NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JASON VINSAND, ) ) Appellant, ) ) v. ) Case No. 2D14-4193 ) MICHELLE VINSAND, ) ) Appellee. ) ) Opinion filed October 28, 2015.

A ppeal from the Circuit Court for Hillsborough County; Tracy Sheehan, Judge.

Robert W. Bauer and Maria Perez Youngblood of Law Office of Robert W. Bauer, P.A., Gainesville, for Appellant. Lawrence J. Hodz of Cortes Hodz Family Law & Mediation, P.A., Tampa, for Appellee.

CASANUEVA, Judge. Jason Vinsand appeals the final judgment dissolving his marriag e to Michelle Vinsand, asserting that the trial court erred in sever al respects. Because we conclude that the trial court erred in denying Mr. Vinsand's mo tion for transfer of venue, we are compelled to reverse and set aside the final judgment.- 2 - Ms. Vinsand commenced dissoluti on proceedings in Hillsborough C ounty, Florida, on January 25, 2013, having arrived in this state earl ier in the month. At the time of filing, Mr. Vinsand resided in Alachua County, Florida, and had resided there a sufficient amount of time to meet Florida's residence requireme nt for obtaining a divorce in this state. See § 61.021, Fla. Stat. (2012) ("To obtain a d issolution of marriage, one of the parties to the marriage must reside 6 months in the stat e before the filing of the petition."). By the time the final judgment was entered, Ms. V insand was residing with the parties' three minor children in the former marital residen ce located in South Dakota, 1 and Mr. Vinsand had relocated to Iowa. For purposes of venue, section 47.011, Florida Statutes (2012), mandates that "[a]ctions shall be brought only in the county where the d efendant resides, where the cause of action accrued, or where the property in litigatio n is located." A proceeding for dissolution of marriage is r egarded as a transitory action. Goedmakers v. Goedmakers, 520 So. 2d 575, 579 (F la. 1988). Our supreme court has held "that because an action for dissolution of marriage is personal or tr ansitory, the 'property in litigation' clause of section 47.011 is not applicable to marri age dissolution cases." Id. at 580. "Thus, a resident defendant in a dissolution proceedin g has the right or privilege of being sued in the county of his residence or in the county w here the cause of action

accrued." Id. at 579. Generally, in a dissolution of marriage action, venue "lies in the county where the parties last lived with a common intent to remain mar ried," as that is where

1 The parties and three minor children resided together in Alachu a County from December 2011 until July 2012, prior to purchasing the hom e in South Dakota.- 3 - the cause of action is deemed to have accrued. Butler v. Butle r, 866 So. 2d 1280, 1281 (Fla. 4th DCA 2004); see Smith v. Smith, 430 So. 2d 521, 522-23 (Fla. 2d DCA 1983). In this case, however, the trial court found that the last plac e where the parties lived with the intent to remain married was South Dakota. Thus, the trial court's order established

that this basis for venue is not available in this case. Having established that the dissolution cause of action did not accrue in Florida, we must turn to the one remaining basis for venue—wher e the defendant resided at the time of filing. It is undisputed that Mr. Vinsa nd resided in Alachua County at the time the petition for dissolution was filed, and we conc lude that venue was proper in Alachua County, not Hillsborough County. We find support for our position in Rivenbark v. Rivenbark, 335 So. 2d 23 (Fla. 1st DCA 1976). In Rivenbark, the parties last resided as a married couple in Georgia, but the wife instituted her dissolution action in her county of residence, Alachua County. At that time the husband resided in Gadsden Co unty, Florida, and sought to transfer venue there. The trial court declined to tr ansfer venue. The First District reversed, reasoning that the marriage was broken in Ge orgia and, because "no substantial competent evidence" supported the wife's contention that the cause of action arose in Alachua County, the husband was entitled to be sued in his county of

residence. Id. at 24. We reach the same conclusion here. There is no substantial, co mpetent evidence to support a conclusi on that venue is proper in Hillsb orough County. The trial court found that the last place t he parties lived together with the common intent to remain married was in South Dakota, and it is undisputed that M r. Vinsand resided in- 4 - Alachua County. Mr. Vinsand, acc ordingly, was entitled as a ma tter of law to be sued in Alachua County, and the trial court erred in denying the motion to transfer venue. See Host Marriott Tollroads, Inc. v. Petrol Enters., Inc., 810 So. 2d 1086, 1089-90 (Fla. 4th DCA 2002) ("If there is no legal basis to support the plaintiff 's choice of venue, the trial

court must dismiss the case or transfer it to a forum that is a uthorized under the applicable venue statute."). Accordingly, we are constrained t o reverse, set aside the final judgment, and remand for transfer to Alachua County. See Fla. R. Civ. P. 1.060. We undertake this course of action because it is required by la w. We note that an order denying a change of venue is one of the enumerate d nonfinal orders reviewable on interlocutory appeal. Fla. R. App. P. 9.130(a)(3 )(A). But such an appeal is not mandatory, and failure to pursue an interlocutory appeal on venue does not bar review of the venue issue on appeal after final disposition of the case. Ferenc v. Ferenc, 553 So. 2d 1329, 1330 (Fla. 1st DCA 1989); Fla. R. App. P. 9.130(h) (stating that the rule permitting appellate review of specified nonfinal orders "shall not preclude initial review of a non-final order on appeal from the final or der in the cause"). While deferring the appeal may be a sound tactical legal decisi on permitting the potential of the proverbial "second bite at the apple," it is on other levels a path fraught with peril and should be approached with caution. In this instance, the parties incurred great costs, both personal and financial, proc eeding through the entire dissolution case and a direct appeal of the final judgment only to start over again in another county. This result is o f particular concern in this c ase, where one of the parties' children is autistic and, this record strongly indicat es, is in need of familial and financial support and stability, as are the other two children.- 5 - Finally, we briefly address the award of permanent alimony in t his case in hopes of avoiding a repeated error on remand and to encourage t he trial bench and practitioners in this field to allow for more meaningful appell ate review. Section 61.08 identifies the various forms of alimony, characterizes marriage s by their duration, and sets out the factors to be considered and findings to be made i n awarding alimony. Permanent alimony may be awarded following a marriage of modera te duration if the trial court determines that "such an award is appropriate based on clear and convincing

evidence after consideration of the factors set forth in subsec tion (2)" of section 61.08. § 61.08(8) (emphasis added); see Valente v. Barion, 146 So. 3d 1247, 1249 (Fla. 2d DCA 2014). In awarding permanent alimony following a marriage of any duration, the trial court "shall include a finding that no other form of alim ony is fair and reasonable under the circumstances of the parties." § 61.08(8). In this case, the seven-year marriage qualifies as a moderate-t erm marriage, see § 61.08(4), but it is not apparent from the recor d that the trial court applied a clear and convincing standard in awarding permanent a limony. Furthermore, the trial court failed to make a finding that no other form of alimony was fair or

reasonable under the circumstances o f this case. We note that such a finding is now statutorily required, Winder v. Winder, 152 So. 3d 836, 841 (Fl a. 1st DCA 2014), and, in order to allow for meaningful appellate review, we recommend th at our trial courts identify on the record that the appropriate evidentiary standar d was applied in determining the appropriate form of alimony.

Reversed and remanded with instructions.

WALLACE and BLACK, JJ., Concur.