Rhines v. RhinesRhines v. Rhines
A husband appeals from a final judgment of dissolution of marriage which, among other things, granted custody of the
The husband, who resided in Michigan at the time the dissolution action was filed by the wife, contends that the final judgment entered on October 2, 1984, was premature and without proper notice to the husband because a notice of action which he received by mail incident to constructive service of process on him gave him until October 12, 1984, to respond. We do not agree. The last service of process on the husband was by personal service through delivery to him of a summons by a Michigan sheriff. The husband was in default on October 2, 1984, under the wording of that summons.
We also disagree with the husband‘s contention that the trial court erred as a matter of law in denying the husband‘s motion for relief from judgment filed pursuant to
The husband cites Rudd v. Zimmerley, 363 So.2d 831 (Fla. 4th DCA 1978), as support for his contention. However, in Rudd the defaulting defendant who received successive services of process was found to have properly responded to the last service of process upon him. In the case at hand the husband failed to respond to the last service of process upon him. In contrast to the situations in Fratus v. Fratus, 467 So.2d 484 (Fla. 5th DCA 1985), and American Agronomics Corp. v. Varner, 413 So.2d 484 (Fla. 2d DCA 1982), cited in the dissenting opinion in this case, as well as in contrast to the facts of Savela v. Fisher, 464 So.2d 240 (Fla. 2d DCA 1985), the husband‘s default was not attributable in any way to the actions or nonactions of an attorney. The husband, who has ably argued on his own behalf to this court, relied solely upon himself. Also, in contrast to American Agronomics and Savela, the husband in his briefs filed with this court in effect acknowledged that he knew that the personally served summons contained an earlier return date. His argument on appeal was the legal argument that he was entitled to conclude that the constructive service return date in the initial service controlled over the return date in the later personal service; the argument presupposes awareness of both return dates. Neither his first brief nor his reply brief argues that he was confused. Nothing in his affidavit says that he was unaware of the return date in the personally served summons.
The dissenting opinion refers to the husband‘s affidavit asserting that he believed that the personal service of process involved a twenty-day response time pertaining to a hearing on temporary custody, notice of which was served upon him in a separate document at the time of the personal service of the summons. But his affidavit also asserted, in a paragraph immediately following two successive paragraphs referring to the return date in the constructive service and the return date in the personal service, that “[t]he two conflicting notices caused confusion regarding what needed to be answered and when.” That statement, which again seems to acknowledge awareness of the return date on the personally served summons, refers to which of the two services of process, constructive
The effect of the husband‘s argument is to say that personal service is not binding upon a party who has been served constructively. This is not the law. Nor do we believe it is, or should be, the law that a twice-served defendant is ipso facto confused as a matter of law so as to excuse his failure to respond to personal service. It is not our province to now rescue him from the consequences of what could well have been determined in the trial court to have been his decision to close his eyes to the admonition in the second summons.
The husband also contends that he had been given insufficient notice of a hearing as to temporary custody. This aspect is not determinative, and we need not address it. See Jackson v. Jackson, 468 So.2d 1098 (Fla. 2d DCA 1985).
Nonetheless, we sua sponte remand for a further hearing on the child custody aspect. The final judgment provides that the wife shall be the primary residential custodian of the minor children. But there is in the final judgment no recognition of the provisions of
Affirmed in part, reversed in part and remanded for further proceedings.
CAMPBELL, A.C.J., concurs.
SCHOONOVER, J., dissents with opinion.
SCHOONOVER, Judge, dissenting.
I respectfully dissent. I would find that the trial court erred in denying the husband‘s motion to set aside the final judgment.
On September 7, 1984, the husband received a notice of action and a copy of the petition for dissolution of marriage. The
When the husband did not file or serve an answer or other responsive pleading by October 1, the wife obtained a default the following day. She also presented testimony and received a final judgment dissolving the parties’ marriage. On October 10, the husband discovered that a default and final judgment had been entered against him. On October 12, the date set forth in the notice of action, the husband filed his answer and a motion for rehearing and, in the alternative, for relief from final judgment.
A hearing on the motion was held October 23, 1984. The husband filed an affidavit in support of the motion for rehearing. In it, the husband stated he believed the second service of process setting forth a twenty-day response time pertained to a hearing on temporary custody, for which he believed he had made arrangements for representation. A copy of the notice of hearing for temporary custody had been served upon him simultaneously with the second service of process. The two conflicting notices, according to the husband, caused confusion as to what needed to be answered and when. He stated he relied upon the notice of action, which gave him a specific date of October 12 to serve a copy of his written defenses in the action for dissolution of marriage. The court denied the motion.
The problem in this case arose, not because of any affirmative action on the husband‘s part, but because process was served twice. The purpose of process, either a notice of action or a summons, is to advise an individual that an action or proceeding has been commenced against him and to warn him that he will suffer a default unless certain action is taken at a named place and within a designated time. Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942).
Even if the court in this case properly entered a default because the husband followed the instructions of the original process instead of the subsequent summons, the court erred in refusing to set aside the final judgment. See Progressive Finance Co. v. Longleaf Lumber Co., 108 Ga. App. 555, 134 S.E.2d 63 (1963)(where process directs a defendant to appear at a term of court subsequent to the term at which the case is properly returnable, he is entitled to rely upon the contents of the process and is protected by his obedience to it).
Where a default has been entered, the party wishing to vacate it has the burden of establishing both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. He must also demonstrate due diligence in seeking relief from default.
In American Agronomics Corp. v. Varner, 413 So.2d 484 (Fla. 2d DCA 1982), the director of a corporation, a nonlawyer, was served with a summons and complaint and failed to deliver them to counsel because he mistakenly believed they were duplicates of papers already served in unrelated lawsuits
The husband in this case, who also is a layman, became confused when he received process twice. He believed that the second service of process pertained to a hearing on temporary custody. He evidently made a mistake in responding to the petition for dissolution of marriage by relying upon the directions contained in the first service of process. He promptly filed an answer which no one contends failed to establish a meritorious defense. Just as the laymen‘s mistakes concerning papers served upon them, combined with other extenuating circumstances, constituted excusable neglect in American Agronomics Corp. v. Fratus, the facts surrounding the controversy in this case warrant setting aside the default judgment. I, accordingly, would reverse and remand for a trial on the merits.