ELEANOR LUCILLE BURTON, APPELLANT,
v.
RAYMOND HAROLD BURTON, APPELLEE
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In a dissolution of marriage case, the court reversed the lower court's ruling that it lacked jurisdiction to award the marital home to the appellant without personal service on the appellee. The court held that service by publication is proper in dissolution actions and the court had jurisdiction over both the property and subject matter to make an award.
The court held that service by publication is proper in dissolution of marriage actions and that the lower court had jurisdiction over both the property and the subject matter to make an award of the marital home to the appellant. The appellant should have been afforded an opportunity to establish her entitlement to the home either as lump sum alimony or based on a special equity.
[1] Constructive service by publication is proper in an action for dissolution of marriage when personal service cannot be effected and the marital property is located within…
[2] A court has jurisdiction over marital property located within its territorial boundaries for the purpose of dissolution proceedings, even without personal service on an a…
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Join FLexlaw to unlock all legal intelligence“Where personal service of process cannot be effected in an action to enforce any equitable title or interest in real or personal property within the jurisdiction of the court, service by publication is proper.”
Establishes the legal standard for jurisdiction in property disputes without personal service
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Join FLexlaw to unlock all legal intelligenceAppellant and appellee married in 1952 and purchased a marital home in joint names approximately 12 years later. Appellee abandoned the family 9 years…
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OTT, Chief Judge.
In this dissolution of marriage action, the lower court ruled that in the absence of personal service on the appellee it lacked jurisdiction to deal with the title or make any award of the marital home of the parties to appellant. We reverse.
Appellant and appellee were married in 1952. Approximately twelve years ago they purchased the marital home in question in their joint names. Three years later appellee abandoned the family and his present whereabouts are unknown. For the last nine years appellant has been the sole supporter of the family of four children, one of whom is still a minor. She has had the sole responsibility of preserving, and protecting the marital home, including payment of the mortgage,, taxes, utilities, and maintenance.
Appellant eventually petitioned to dissolve the marriage. She sought, among other things, an award of the marital home either as lump sum alimony or because of her special equity therein. Pursuant to chapter 49, Florida Statutes (1981), constructive service by publication was lawfully perfected on appellee. He failed to answer or otherwise plead, and a default was entered. In the final judgment, the lower court ruled that “the court lacks personal service upon [appellee] and therefore the marital home of the parties ... shall become a tenancy in common.”
Where personal service of process cannot be effected in an action to enforce any equitable title or interest in real or personal property within the jurisdiction of the court, service by publication is proper. See § 49.011(1), Fla.Stat. (1981). Similarly, such service is proper in any action for the dissolution of a marriage. § 49.011(4), Fla. Stat. (1981). Because the property, together with the appellant’s equitable claim against it, was described in the petition for dissolution, see section 49.08, Florida Statutes (1981), and because the property was located within the lower court’s jurisdiction, we conclude the lower court had jurisdiction of both the property and the subject matter to make an award of the marital home to appellant consistent with proper proof of equitable entitlement. See Lahr v. Lahr, 337 So. 2d 837 (Fla.2d DCA 1976).
Appellant should have been afford.ed an opportunity to establish her need for the home as lump sum alimony and appellee’s ability to pay. See Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla.1980). Alternatively, she may be entitled to the home if she establishes a special equity therein. Although payments on real property made with funds earned during the marriage do not ordinarily give rise to a special equity, Baker v. Baker, 403 So. 2d 1111 (Fla. 2d DCA 1981), the lower court should consider whether appellant has acquired a vested interest in the home because of contributions “over and above the performance of normal marital duties.” Duncan v. Duncan, 379 So. 2d 949, 952 (Fla.1980).
The final judgment of dissolution is therefore REVERSED, and the case is REMANDED for further proceedings consistent herewith.
BOARDMAN and RYDER, JJ., concur.
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Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)…e of process by publication may be had upon any party ...” Service by publication is less likely to provide effective notice to a defendant than personal service; thus, service by publication should only be used when necessary. See Burton v. Burton, 448 So. 2d 1229 (Fla. 2d DCA 1984); Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983); Taylor v. Lopez, 358 So. 2d 69 (Fla. 3d DCA 1978). If constructive service must be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A personal j…
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McCABE v. McCABE, 600 So. 2d 1181 (Fla. 5th DCA 1992)…only as to matters for which publication is authorized provided all procedural requirements are complied with. See, e.g. Montano v. Montano, 520 So. 2d 52 (Fla. 3d DCA 1988); Whigham v. Whigham, 464 So. 2d 674 (Fla. 5th DCA 1985); Burton v. Burton, 448 So. 2d 1229 (Fla. 2d DCA 1984); Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983); Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980); Palmer v. Palmer, 353 So. 2d 1271 (Fla. 1st DCA 1978); Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976); Lahr v.…
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Steffens v. Steffens, 593 So. 2d 1156 (Fla. 2d DCA 1992)…$100,000.00 certificate of deposit because it was described in appellee’s petition for dissolution and in the notices relating to the constructive service of process obtained against appellant. Ap-pellee has relied on the cases of Burton v. Burton, 448 So. 2d 1229 (Fla. 2d DCA 1984) and Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976), where we held that in a dissolution action the court may acquire in rem jurisdiction of the parties’ property so as to be able to effectively make an equitable division of the p…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
- Baker v. Baker, 403 So. 2d 1111 (Fla. 2d DCA 1981)
- Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976)