Callaghan v. CallaghanCallaghan v. Callaghan
R. Harris Turner, of Turner & Shapiro, Miami, for appellee.
DRIVER, B.J., Associate Judge.
Appellant, Eugene J. Callaghan, was respondent in the trial court in an action for dissolution of marriage brought by his wife, Blanche D. Cаllaghan. He appeals a post-judgment order denying in part his Motion to Vacate and Set Aside Final Judgment dissolving the marriage.
The parties will be referred to as they apрeared in the trial court.
Petitioner-wife filed an action to dissolve the marriage between the parties. Service of process by publication was attempted in аccordance with
We agree that there was no valid service of process as required by
The husband‘s Motion to Vaсate the Final Judgment was supported in every particular by his sworn affidavit. The Motion to Vacate was called up before Circuit Judge Wehle, an assigned visiting judge, and not beforе Judge Weissing, the original trial judge.
The motion and affidavits alleged that petitioner had falsely misstated respondent‘s mailing address.
“The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such pеrson, and that the same is set forth in said sworn statement as particularly as is known to affiant.” (e.s.)
Petitioner purported to comply with the statute by alleging in her sworn complaint the fоllowing:
“Respondent‘s address is: Othello Lane, Muphaign, Nairobi, Kenya, P.O. Box 46971, Nairobi, Kenya.” (e.s.)
The husband‘s motion and affidavit recited that his correct address was P.O. Box 20047, Nairobi, Kenya, which fact was well known to рetitioner-wife, notwithstanding which she caused the Notice of Suit to be mailed to another address which was the business address of the wife. The Notice of Suit was eventually relayed оn to the husband; however, he did not receive the Notice of Suit until one week after receiving a copy of the Final Judgment which he seeks to vacate.
The order denying thе Motion to Vacate recites that four factors were considered in ruling on the motion. These were:
(a) The available record
(b) The affidavit of respondent
(c) Questions directed to the wife‘s counsel
(d) The fact that the wife had remarried prior to the hearing on the Mоtion to Vacate.
The wife did not traverse the Motion to Vacate, nor file opposing affidavits or appear at the hearing on the motion for the reason thаt she had remarried immediately after the Final Judgment and was someplace in the Middle East with her new husband.
The order denying the motion contained findings of fact, conclusions, and rulings of law. We hold that the factors relied upon by the trial court will not support the rulings. Patently, “questioning of counsel” is not proof and had no probative value to oppose the affidavits of the husband. It is equally patent that the remarriage of the wife had no probative value on the issue of defective service. The “available record” cоnsidered by the trial judge consisted merely of the pleadings, Notice
While the order denied the Motion to Vacаte Final Judgment, it did modify the provisions awarding custody of the child to the mother on the grounds that the court had not acquired jurisdiction over the child.
Judge Wehle apparently ruled orаlly on the motion at the conclusion of the hearing, but after his announced findings of fact, conclusions and rulings of law were reduced to writing, the order was actually signed by Judge Minnet. It is not nеcessary for us to pass upon the validity of the purported order in view of the other grounds upon which we reverse, but it is appropriate to point out that an order оr judgment whose effect is dependent upon findings of fact and conclusions to be drawn from these facts should be signed by the judge before whom the facts are adduced and by whom thе findings are made.
Averting now to the merits of the Motion to Vacate, we find that the sworn statement alleging the last known address of a defendant is not tantamount to nor the equivalent оf a statement as to defendant‘s residence as required by
The constructive service statute is strictly construed against а plaintiff who seeks service of process under it. McGee v. McGee, 156 Fla. 346, 22 So.2d 788 (1945); Canzoniera v. Canzoniera, 305 So.2d 801 (4th DCA Fla.App. 1975); Wilmott v. Wilmott, supra. Service of process in this cause was never perfected upon the respondent, consequently the trial cоurt never acquired jurisdiction over him. Final Judgment entered against respondent below is void and it was error not to grant the Motion to Vacate.
The purported service is affliсted with other infirmities. Even if the errors pointed out above were not present, flaws in the attempted service of process by publication would require reversal. The Notiсe of Suit was not sent to the husband‘s correct mailing address. It was, instead, sent to the address of the wife‘s former employer, even though the correct address was known to the wife sinсe she had left the husband only approximately ten days prior to the filing of the suit. This court, together with our sister courts, has consistently adhered to the principle that in seeking to еffect service of process by publication a plaintiff must demonstrate good faith efforts to comply with the statute.
“Further, the court should satisfy itself of the bona fides of the рlaintiff in attempting to make constructive service. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); McDaniel v. McElvy, supra; [91 Fla. 770, 108 So. 820] Green v. Nashner, supra; [216 So.2d 492] Larsen v. Larsen, 180 So.2d 393 (1st DCA Fla. 1965)... . the test is whether the complainant reasonably employed the knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable him to effect personal service on the defendant.” Canzoniera v. Canzoniera, supra, at 803.
The respondent-husband is entitled to his day in court. His Motion to Vacate Default and Final Judgment and for Leave to File Answer and Counterpetition should be granted upon remand, аppellant having submitted himself to the jurisdiction of the court by his Motion for Leave to File Answer and Counterpetition.
Appellee has placed primary reliance for an affirmance on the contention that appellant did not submit to this court a “complete record.” We have not overlooked this contention, but find it without merit.
REVERSED and REMANDED for further рroceedings consistent herewith.
OWEN and DOWNEY, JJ., concur.
ON PETITIONS FOR REHEARING
DRIVER, B.J., Associate Judge.
The petition of Blanche D. Callaghan, appellee, for rehearing is denied.
The petition of Eugene J. Callaghan, appellant, for rehearing is granted.
The right of a defendant to incorporate an objection to jurisdiction over his person may be joined with a request for other relief without waiving his objeсtions to jurisdiction over his person. Green v. Roth, 192 So.2d 537 (Fla.App.2nd 1966).
Accordingly, the following language is withdrawn from the opinion rendered in this cause on March 26, 1976:
“The respondent-husband is entitled to his day in court. His Motion tо Vacate Default and Final Judgment and for Leave to File Answer and Counterpetition should be granted upon remand, appellant having submitted himself to the jurisdiction of the court by his Motion for Leave to File Answer and Counter-petition.”
We adhere to that opinion in all other respects.
WALDEN, C.J., and DOWNEY, J., concur.