LENA LI, APPELLANT,
v.
CHI HSI LI, APPELLEE

Fla. 4th DCA | 1983-12-07
No. 83-13
HURLEY, J., and SIMONS, STUART M., Associate Judge, concur.
442 So. 2d 327 Florida District Court of Appeal, Fourth District (1983) Positive Treatment
Cited by 4 cases

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Synopsis

In this dissolution of marriage case, the Florida Fourth District Court of Appeal reversed the trial court's final judgment and remanded because the trial court violated procedural due process by proceeding with a final hearing without proper notice to the appellant, despite her lack of actual notice of the trial date.


Holding

The trial court abused its discretion by proceeding with the final hearing and entering the final judgment without ensuring the appellant received notice of the trial date as required by Florida Rule of Civil Procedure 1.440(c). In the absence of a showing that appellant had actual notice of the scheduled trial date, the final judgment must be reversed and remanded for further proceedings.


Headnotes

[1] A trial court abuses its discretion by proceeding with a final hearing and entering a final judgment dissolving a marriage when the record does not show that a party rece…

[2] A party's awareness of a scheduled final hearing, without actual notice of the specific trial date, is insufficient to satisfy the notice requirements of Florida Rule of…

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Key Quotes

“In the absence of a showing that appellant had actual notice of the scheduled trial date, we must conclude that the trial court abused its discretion in proceeding forward with the final hearing and entering the final judgment dissolving the parties' marriage.”

Establishes the core holding that lack of actual notice of trial date constitutes an abuse of discretion requiring reversal.

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Facts & Procedural History

Lena Li and Chi Hsi Li married in Peking, China in 1961 and have one minor child. They separated in 1973, with appellant residing in New York. In Marc…

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Opinion of the Court
DELL, Judge.

DELL, Judge.

Lena Li appeals from a final judgment dissolving her marriage to Chi Hsi Li.

In 1961, the parties married in Peking, China. They have one minor child. Appellant has resided in New York since the parties separated in 1973. On March 22, 1982, appellee initiated this action through his counsel by filing a petition for dissolution of marriage. Appellant responded by sending a letter to the Clerk of the Circuit Court for Broward County, noting a copy to attorney, in which she advised that she strongly opposed the dissolution of her marriage and requested information concerning what action she should take. Although the record contains an affidavit of non-military service, the record does not show that appellee obtained a default judgment. The record contains no notice setting the cause for trial.

On November 22, 1982, the trial court conducted a final hearing and noted in its final judgment that appellant was neither present nor represented by counsel but that letters written by appellant indicated her awareness of the scheduled final hearing. The final judgment dissolved the marriage of the parties, determined child support and custody of the minor child, and conditionally provided alimony for appellant. Appellant contends she is entitled to a new trial, because she did not receive notice of the final hearing as required by Florida Rule of Civil Procedure 1.440(c). She also challenges the trial court’s adjudication of child support and alimony.

Florida Rule of Civil Procedure 1.440(c) provides:

(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b). By giving the same notice, the court may set an action for trial on its own motion. In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).

The record shows that neither party received notice of trial as required by Florida Rule of Civil Procedure 1.440. By agreement, the parties supplemented the record with the letters referred to in the final judgment. Appellant made no reference to the date of the final hearing and only stated that she could not attend the final hearing because of time and money. In the absence of a showing that appellant had actual notice of the scheduled trial date, we must conclude that the trial court abused its discretion in proceeding forward with the final hearing and entering the final judgment dissolving the parties’ marriage. In view of this conclusion, we need not reach appellant’s other points on appeal.

Accordingly, the final judgment dissolving the marriage of the parties is reversed, and this cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

HURLEY, J., and SIMONS, STUART M., Associate Judge, concur.


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Citator

Cited By

  • Taylor v. Bowles, 570 So. 2d 1093 (Fla. 4th DCA 1990)
    …Appellant also never received notice that the trial date or the calendar call had been set. When a party has no notice of a trial date, the trial court abuses its discretion when it proceeds with a final hearing and enters final judgment. Li v. Li, 442 So. 2d 327, 328 (Fla. 4th DCA 1983). GLICKSTEIN and WARNER, JJ„ and OFTEDAL, RICHARD L., Associate Judge, concur.…
  • Watson v. Watson, 583 So. 2d 410 (Fla. 4th DCA 1991)
    …. 2d 758 (Fla. 3d DCA 1986). As we stated in Taylor v. Bowles, 570 So. 2d 1093, 1094 (Fla. 4th DCA 1990), “[w]hen a party has no notice of a trial date, the trial court abuses its discretion when it proceeds with a final hearing.” See also Li v. Li, 442 So. 2d 327 (Fla. 4th DCA 1983). Accordingly, we reverse the trial court’s order denying appellant’s motion to set aside the judgment and remand this cause for a new trial. REVERSED AND REMANDED. DELL, GUNTHER and POLEN, JJ., concur. . To rebut this, appelle…
  • Clement v. Marcus, 516 So. 2d 1137 (Fla. 4th DCA 1987)
    …l court abused its discretion by denying appellant’s motion to vacate judgment, as it is clear from the record that appellant had no notice of the date of the jury trial that resulted in a judgment against him. We conclude that it did. See Li v. Li, 442 So. 2d 327 (Fla. 4th DCA 1983). We find merit to appellant’s arguments as the record supports his contention that he was denied due process notice of the trial date; and therefore the court should have granted his motion to vacate the judgment which, he urges…

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