In re Estate of Raso, No. 75-1530

No. 75-1530 | Fla. Dist. Ct. App. | May 14, 1976

WALDEN, Chief Judge.

The trial court denied appellant, Madeline Dudek’s, motion to vacate a default judgment and she appeals. We reverse.

Appellee, decedent’s wife, filed a Petition for Determination of Heirs, listing as a possible heir the illegitimate child of appellant. The petition was served on appellant but she did not timely respond. Appellee moved for and was granted a default. The court entered an order determining the heirs to be the legitimate children of appellee. Appellant filed a motion to vacate the default judgment. This motion should have been granted. Empire Electric Co. v. R. J. Hunt Construction Co., 264 So. 2d 114" court="Fla. Dist. Ct. App." date_filed="1972-06-30" href="https://app.midpage.ai/document/empire-electric-co-v-rj-hunt-construction-co-1724510?utm_source=webapp" opinion_id="1724510">264 So.2d 114 (4th DCA Fla.1972). Appellant properly alleged facts demonstrating excusable neglect. These facts included that she had been extremely ill and had to be hospitalized; that she is on welfare and lives in New Jersey; and that she wrote a letter to the court explaining her difficulties, Jasson D. Radding, Inc. v. Coulter, 138 So. 2d 380" court="Fla. Dist. Ct. App." date_filed="1962-02-28" href="https://app.midpage.ai/document/jasson-d-radding-inc-v-coulter-1822937?utm_source=webapp" opinion_id="1822937">138 So.2d 380 (2d DCA Fla.1962). The appellant also alleged a meritorious defense — decedent was the father of her child, see Clark v. Roberto’s, Inc., 320 So. 2d 870" court="Fla. Dist. Ct. App." date_filed="1975-10-03" href="https://app.midpage.ai/document/clark-v-robertos-inc-1846908?utm_source=webapp" opinion_id="1846908">320 So.2d 870 (4th DCA Fla.1975); Cowen v. Knott, 252 So. 2d 400" court="Fla. Dist. Ct. App." date_filed="1971-08-20" href="https://app.midpage.ai/document/cowen-v-knott-1710325?utm_source=webapp" opinion_id="1710325">252 So.2d 400 (2d DCA Fla.1971).

Therefore, we hold the court abused its discretion in denying appellant’s motion to vacate default judgment as appellant properly alleged excusable neglect and a meritorious defense. The final judgment is vacated and the case is remanded for further proceedings.

REVERSED AND REMANDED.

CROSS, J., arid SCHWARTZ, ALAN R., Associate Judge, concur.