Arthur v. ArthurArthur v. Arthur
- Reporters:
- ,
- Before:
- Sharp, Dauksch, Cowart
Andrew A. Graham and Maureen M. Matheson of Reinman, Harrell, Silberhorn & Graham, P.A., Melbourne, for appellee.
SHARP, Chief Judge.
Samuel Arthur appeals from the lower court‘s denial of his motion to abate the accrual of child support and alimony payments due under a dissolution judgment rendered September 4, 1984, and of his motion for relief from the judgment pursuant to
Rosemarie Arthur filed a petition for dissolution of marriage in June of 1984. She recited the fact of the parties’ marriage on December 24, 1955 in New York state; the existence of a minor child of the parties; the parties’ execution of a property settlement agreement dated December 12, 1983; which was attached to the complaint; and her residence in this state for more than six months prior to filing the petition. She requested custody of the child, temporary child support and alimony because Samuel had failed to pay those sums agreed to in the settlement agreement, and “such other and further relief as this court may deem meet and just.”
A summons and copies of the complaint and exhibit were personally served on Samuel in New York, pursuant to Florida‘s long-arm statute.2 He does not deny that he received these documents. The summons notified him that he was required to serve written defenses on Rosemarie‘s attorney, whose address was provided, within twenty days of the service or a default would be entered against him.
Samuel declined to answer or appear. Two orders concerning temporary relief were entered in July of 1984. Copies were mailed to Samuel. On July 30, 1984, a default was entered against Samuel, and a copy thereof was also furnished to him. A default judgment was entered on August 3, 1984.
The matter was then set for trial. Samuel was not notified of the trial date. The final judgment is dated September 4, 1984. It requires Samuel to pay Rosemarie $700 per month periodic permanent alimony and $250 per month child support. It also incorporated the settlement agreement, and attached the original of that agreement. A copy of the judgment was mailed to Samuel.
At least six contempt and enforcement actions were filed against Samuel from 1984 to 1986 in Florida. Apparently Rosemarie‘s collection efforts in New York got Samuel‘s attention. On March 17, 1988, he filed a motion for relief from judgment pursuant to
Pursuant to
With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not... .
Failure to allege such jurisdictional facts is generally fatal. Service is void, and any judgment obtained is void. Hargrave v. Hargrave, 495 So. 2d 904 (Fla. 1st DCA 1986); Laney v. Laney, 487 So. 2d 1109 (Fla. 1st DCA 1986); Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984). Cf. Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985). A void judgment obtained without personal jurisdiction or subject matter jurisdiction may be set aside at any time. See Palmer v. Palmer, 479 So. 2d 221 (Fla. 5th DCA 1985).
Rosemarie neglected to frame the allegations of her complaint with the jurisdictional facts set forth in
The settlement agreement, which Samuel signed, recites that the parties married in 1955 and cohabited as husband and wife until 1982 when they separated. Seven children were born; two were minors at the time of the separation. The agreement further states that the parties jointly own a residence in Melbourne, Florida, “[w]hich is the marital residence.” Although minimal, these allegations are sufficient to infer that Samuel had been a resident of Florida in 1982 and prior thereto; and at the time the petition was filed, that he was maintaining a marital residence in Melbourne, Florida for his family.5
In such a case, it is incumbent upon the party challenging personal jurisdiction to file a motion to dismiss and make a showing which challenges the disputed jurisdictional facts. Only then must the plaintiff (or petitioner) come forward with affidavits or other competent proofs to establish the jurisdictional allegations. Newton v. Bryan, 433 So. 2d 577 (Fla. 5th DCA 1983); Pace Carpet Mills, Inc. v. Life Carpet & Tile Co., Inc., 365 So. 2d 445 (Fla. 4th DCA 1978); Electro Engineering Products Company, Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977). Although not relevant to the resolution of this appeal, the lower court did hold a hearing in 1988 at which time Samuel attempted to establish nonjurisdictional facts. He claimed he was not living in Florida at the time the petition was filed. However, he admitted he maintained the home in Melbourne for his family, and that he resided there “sometimes” with Rosemarie and the children. He had a
Samuel also argues that the lower court erred by not setting the dissolution judgment aside because he had no notice the judgment would order him to make support payments different than those set forth in the settlement agreement. If the lower court had personal jurisdiction over Samuel, as we conclude it did, then this kind of challenge should have been brought within one year pursuant to
There is no substantial issue here that Samuel did not receive due process notice of the complaint and the final judgment. They were served and mailed, respectively, to him at the address he agreed would constitute “sufficient notice” under the laws of Florida.6 In fact, Samuel does not deny he did actually receive a copy of the summons, complaint, and trial judgment. Long-arm personal service is the most likely method by which to afford a respondent in a dissolution suit notice of the proceedings when in-state service is not available. Mouzon at 386. Since any defects in notice here are not sufficient to make the process void, but only voidable at best, Samuel‘s challenge, long after one year, is too late under
AFFIRMED.
DAUKSCH J., concurs.
COWART, J., dissents without opinion.
Notes
The parties further agree that should it become desirable or necessary to enforce this Agreement in any manner whatsoever subsequent to the execution hereof, written notice to their respective foregoing addresses shall constitute sufficient notice under the laws of the State of Florida for the purposes contained in such notice.