HYDER RALEIGH DAVIE, APPELLANT,
v.
BARBARA JEAN CALTON, BY AND THROUGH HER NEXT FRIEND AND MOTHER, MARY LEE CALTON, APPELLEE
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The court reversed an order denying relief from a 1969 paternity judgment against a minor appellant, holding that service of process was defective because it failed to comply with Florida's strict statutory requirements for serving minors who have never been married. The judgment was therefore void and subject to being set aside at any time, and the appellant's motion for blood type testing was also reinstated.
Service of process was ineffective to confer jurisdiction because it failed to comply with the conjunctive and strict requirements of Florida Statutes Section 48.041(1)(1969), which required the process to be read to the minor and to the person in whose custody the minor was, and to be served on a guardian ad litem. The resulting judgment was void and subject to being set aside at any time.
[1] Service of process on a minor who has never been married is ineffective to confer jurisdiction if the process is not read to the minor and the person in whose care or cus…
[2] A judgment entered against a minor who was not properly served with process is void and may be set aside at any time.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where, at the time of the service of process, the appellant was a minor who had never been married, the service, which was, as the sheriff's return itself reflects, made solely by leaving the process with the appellant's father and explaining the contents thereof, was ineffective to confer jurisdiction over the appellant”
Establishes the core holding that service on a minor's father alone does not constitute valid service of process
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Join FLexlaw to unlock all legal intelligenceIn 1969, process in a paternity action was served on the appellant Davie when he was a minor who had never been married. The sheriff served process so…
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PER CURIAM.
The order denying appellant’s motion for relief from a 1969 Final Judgment of Paternity and Support Order is reversed upon a holding that where, at the time of the service of process, the appellant was a minor who had never been married, the service, which was, as the sheriff’s return itself reflects, made solely by leaving the process with the appellant’s father and ex plaining the contents thereof, was ineffective to confer jurisdiction over the appellant, see Gissen v. Goodwill, 74 So. 2d 86 (Fla.1954); Buck v. McNab, 139 So. 2d 734 (Fla. 2d DCA), cert. denied, 146 So. 2d 374 (Fla.1962); Foster v. Thomas, 112 So. 2d 33 (Fla. 1st DCA 1959), by reason of the process server’s failure to comply with the conjunctive and strict requirements of Section 48.041(1), Florida Statutes (1969),1 see Jones v. Lucks, 349 So. 2d 691 (Fla. 4th DCA 1977); Flint v. Baker, 189 So. 2d 654 (Fla. 2d DCA 1966); Drake v. Wimbourne, 112 So. 2d 27 (Fla. 2d DCA 1959), and the resulting judgment against the appellant was void and subject to being set aside at any time, see Williams v. Richardson, 432 So. 2d 58 (Fla. 3d DCA 1983); T.J.K. v. N.B., 237 So. 2d 592 (Fla. 4th DCA 1970). See also McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979); Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976); J.E.S. v. B.J.F., 240 So. 2d 520 (Fla. 4th DCA 1970).
Since, as the appellee concedes, the setting aside of the final judgment of paternity makes viable the appellant’s motion to require the appellee and the child to submit to tests to determine their blood types, the denial of this motion is also reversed. See Elzey v. Smith, 412 So. 2d 918 (Fla. 1st DCA 1982); Bailey v. Richardson, 412 So. 2d 69 (Fla. 1st DCA 1982); Simons v. Jorg, 384 So. 2d 1362 (Fla. 2d DCA 1980). Cf. Nostrand v. Olivieri, 427 So. 2d 374 (Fla. 2d DCA 1983). See also McQueen v. Stratton, 389 So. 2d 1190 (Fla. 2d DCA 1980); Carlyon v. Weeks, 387 So. 2d 465 (Fla. 1st DCA 1980).
Reversed and remanded for further proceedings.
. Section 48.041(1), Florida Statutes (1969), provides, in pertinent part, that process upon a minor who has never been married must be served:
‘‘[b]y reading the process to the minor or incompetent to be served and to the person in whose care or custody the minor or incompetent is and by delivery of a copy thereof to such person in whose care or custody the minor or incompetent is and by further serving said process on the guardian ad litem or other person, if one is appointed by the court to represent the minor or incompetent."
In the present case the process was not read to the minor, arguably was not read to the minor’s father, and, although the minor’s father was later appointed guardian ad litem, was not served upon the minor’s father in that capacity.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Patton v. State, 620 So. 2d 1107 (Fla. 2d DCA 1993)…this court on appeal, only ruling on that which transpired after entry of final judgment of paternity.” Such a response only begs the question whether those postjudgment proceedings were in accordance with the requirements of law. Davie v. Calton, 453 So. 2d 185 (Fla. 3d DCA1984), another case cited as authority by Patton, is similarly unavailing. In Dav-ie the court reversed an order which had declined to set aside a fifteen-year-old paternity judgment, a fact lending itself to Patton’s “a fortiori” style…
Authorities Cited (19 total)
- McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)
- Van Nostrand v. Nunzio J. Olivieri and Carol A. Olivieri, 427 So. 2d 374 (Fla. 2d DCA 1983)
- McQUEEN v. Lucinda B. Stratton, 389 So. 2d 1190 (Fla. 2d DCA 1980)
- T. J. K. v. N. B., 237 So. 2d 592 (Fla. 4th DCA 1970)
- Callaghan v. Blanche D. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976)
- Miles Edward Carlyon v. Weeks, 387 So. 2d 465 (Fla. 1st DCA 1980)
- Buck v. McNAB, 139 So. 2d 734 (Fla. 2d DCA 1962)
- Simons v. Elfriede Jorg, 384 So. 2d 1362 (Fla. 2d DCA 1980)
- Emslie v. State, 146 So. 2d 374 (Fla. 1962)
- Fuchs v. Miami Beach First Nat'l Bank, 146 So. 2d 374 (Fla. 1962)