67 So. 3d 359
Fla. Dist. Ct. App.2011Background
- Wife filed petition for dissolution; husband defaulted after not timely answering.
- Notice of final hearing on petition sent by wife’s counsel by mail to marital residence and by email.
- Husband did not appear; circuit court entered final judgment awarding wife certain property.
- Wife later moved to award husband’s interest in an airplane to herself for unpaid child support; notice sent similarly.
- Husband again did not appear; court awarded the airplane interest to wife.
- Seven months after judgment, husband filed relief motions under Rule 1.540(b)(4), sworn affidavits alleging no notice and lack of contact; trial court denied relief, then orders entered without explicit findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of notice voids final judgment | Husband asserts no notice; void judgment. | Wife claims proper notice via last known address and email. | Void judgment; relief granted; reversed and remanded. |
| Sufficiency of unrebutted sworn evidence on notice | Sworn affidavits establish no notice. | Unsworn statements by counsel cannot determine notice. | Unsworn statements not competent; reversal. |
| Effect of address used for service | Notice sent to marital residence ensured. | Husband's last known address was Saudi Arabia; wife failed to contact there. | Notice void; address misidentification voids service. |
| Rule 1.540(b)(4) relief standard | Void judgment may be relieved at any time. | No relief without proper basis. | Relief granted; judgment void and should be set aside. |
Key Cases Cited
- Watson v. Watson, 583 So.2d 410 (Fla. 4th DCA 1991) (judgment entered without notice is void)
- Arnold v. Arnold, 889 So.2d 215 (Fla. 2d DCA 2004) (unsworn statements cannot establish facts)
- Colon v. Colon, 45 So.3d 553 (Fla. 4th DCA 2010) (relief from void judgment may be granted at any time)
- Greisel v. Gregg, 733 So.2d 1119 (Fla. 5th DCA 1999) (notice issues; final judgment void for lack of notice)
- Lanes v. Lanes, 454 So.2d 782 (Fla. 4th DCA 1984) (assurances about divorce can sustain relief from judgment)
- Weber v. Shea, 742 So.2d 443 (Fla. 4th DCA 1999) (lack of proper notice as reason to set aside judgment)