       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    CARL FREDRIK GUSTAFASSON,
                             Appellant,

                                     v.

                 THE MATTER OF CATHERINE LEVINE,
                             Appellee.

                              No. 4D15-1698

                           [December 2, 2015]

  Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Laura M. Watson, Judge; L.T. Case No.
FMCE14-005173 42/91.

    Lauren Melissa Alperstein of Boies, Schiller & Flexner LLP, Hollywood,
for appellant.

   Deborah Bianchi Tracht, P.A., Fort Lauderdale (withdrawn as counsel
after filing brief), and Catherine Levine, Hollywood, pro se.

DAMOORGIAN, J.

   Carl Frederik Gustafasson (“the Father”) appeals the trial court’s denial
of his motion to dismiss for lack of personal jurisdiction, quash service of
process, and for other relief in a child support dispute with Catherine
Levine (“the Mother”). Because we conclude that the Mother failed to
demonstrate grounds for personal jurisdiction over the Father and the
Father did not waive the defense of lack of personal jurisdiction, we
reverse.

   By way of background, the Mother filed a petition in Florida to establish
child support and other relief in connection with the parties’ minor child.
The Father was then served with the petition in Sweden, where he resides.
In her petition, the Mother requested the trial court exercise long-arm
jurisdiction over the Father pursuant to the Hague Convention’s
provisions regarding service abroad. The Mother never alleged, however,
that the minor child was conceived in Florida or that the Father ever
resided in or visited Florida. The Father in turn took the following steps
in the litigation: (1) filed a general notice of appearance which was
amended the following day as a limited notice of appearance; (2) filed two
discovery requests and withdrew the same the following day; and (3)
agreed to an order extending a discovery deadline.               The Father
subsequently filed his motion to dismiss for lack of personal jurisdiction,
and argued therein that he had not been served in Florida and had never
lived in or visited Florida. These allegations were never refuted by the
Mother. The Father further maintained that his limited actions in the
litigation thus far did not serve to waive personal jurisdiction as they were
defensive in nature. As such, the Father maintained that the trial court
lacked personal jurisdiction. The trial court disagreed and found that the
Father had “voluntarily submitted himself to the jurisdiction of the trial
court by participating in the litigation by moving the court to grant
requests materially beneficial to [the Father].”

   As a preliminary matter, we hold that the Mother failed to establish
personal jurisdiction over the Father because she failed to plead any facts
sufficient to demonstrate personal jurisdiction over the Father under
Florida’s long-arm statute, section 48.193, Florida Statutes (2014), or the
Uniform Interstate Family Support Act, section 88.2011, Florida Statutes
(2014). Furthermore, while the Mother did generally refer to the Hague
Convention in her petition, she failed to show that its provisions would
override the applicable statutory provisions or due process considerations.
See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 500 (Fla. 1989).

    We further hold that the Father did not waive the defense of lack of
personal jurisdiction by filing a limited notice of appearance, making and
subsequently withdrawing two discovery requests, and agreeing to an
order extending a discovery deadline. Those actions “were purely defensive
in nature, could not be maintained ‘independently of [the Mother’s] claim,’
and thus, were not requests for affirmative relief.” Brown v. U.S. Bank
Nat’l Ass’n, 117 So. 3d 823, 824 (Fla. 4th DCA 2013) (holding that
appellants did not waive defect in service by making discovery requests
and moving for sanctions as those actions were purely defensive in nature).
See also Pub. Gas Co. v. Weatherhead Co., 409 So. 2d 1026, 1027 (Fla.
1982) (holding that the filing of a notice of appearance did not serve to
waive the right to claim lack of jurisdiction); Byers v. FIA Card Servs., N.A.,
82 So. 3d 1166, 1168 (Fla. 4th DCA 2012) (holding that filing a motion for
extension of time within which to respond to a complaint did not go to the
merits of the case and therefore did not serve to waive the defense of lack
of jurisdiction). Nor did the Father’s filing of a motion for attorney’s fees
constitute waiver, as this motion was filed in connection with his motion
to dismiss the Mother’s petition for lack of personal jurisdiction. See
Heineken v. Heineken, 683 So. 2d 194, 198 (Fla. 1st DCA 1996).


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   Accordingly, we reverse and remand for the trial court to vacate its
order denying relief and to grant the motion to dismiss.

   Reversed and remanded.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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