LEGAL GUIDE
Written by attorney Dana Elaine Quigley | Aug 31, 2011

Florida: Child Custody - Motions to Dismiss Based on Res Judicata and Collateral Estoppel

It is deeply rooted in this state that the doctrine of res judicata, collateral estoppel, and estoppel by judgment are affirmative defenses that are not properly raised in a motion to dismiss or motion to strike and must be pled in an Answer. Ramos v. Mast, 789 So.2d 1226 (Fla. 4th DCA 2001).

A party does not have the burden of anticipating the defense and overcoming it in the initial pleading and the burden is on the respondent to prove the affirmative defenses, which cannot be done in a proceeding on a motion to dismiss as it requires pleading and proof. Upland Dev. Of Cent. Fla. v. Bridge, 910 So.2d 942 (Fla. 5th DCA 2005). An evidentiary hearing is required to determine if the doctrine of res judicata, collateral estoppel, or estoppel by judgment bars the allegations. Vetrick v. Hollander, 743 So.2d 1128 (Fla. 4th DCA 1999); Weit v. Rhodes, 691 So.2d 1108 (Fla. 4th DCA 1997).

An exception is made when the face of the complaint is sufficient to demonstrate the existence of the defense; however, such defense must clearly appear on the face of the pleadings without the Court looking beyond the four corners of the pleadings. Papa John’s v. Cosentino, 916 So.2d 977 (Fla. 4th DCA 2005).

Yet, the doctrines of res judicata, collateral estoppel, or estoppel by judgment are not applicable where there are facts concerning the welfare of the child that have arisen since the decree or custody order. Stated differently, res judicata does not apply when there has been a substantial, material change since the original custody decree or custody order(s). Wade v. Hirschman, 903 So.2d 928 (Fla. Sup. Ct. 2005). Minick, 149 So. 483 (1933); Bennett, 73 So. 2d 274 (Fla. 1954); Lamb, 533 So.2d 857 (Fla. 4th DCA 1988.

As such, a custody decree or orders relating to the custody of a child can be materially modified if there are facts concerning the welfare of the child that (a) the Court did not know at the time the decree(s) were entered; or, (b) there has been a substantial change in circumstances shown to have arisen since the decree(s).Wade v. Hirschman, 903 So.2d 928 (Fla. Sup. Ct. 2005); Sanchez v. Hernandez, 45 So.3d 57 (Fla. 4th DCA 2010); Tucker v. Greenberg, 674 So.2d 807 (Fla. 5th DCA 1996).

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