JULIO MONTANO, APPELLANT,
v.
MARIA PIA MONTANO, APPELLEE
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In a dissolution of marriage case, the husband appealed an order on pending motions, asserting he was never properly served with process. The court reversed, holding that the husband presented clear and convincing evidence that the process server served the wrong person, thereby invalidating service and depriving the trial court of personal jurisdiction.
The court held that the evidence presented by the husband—his affidavit and the guest's deposition—was clear and convincing and rebutted the presumption of valid service. The response "Si" to the question "Mr. Julio Montano?" was insufficient to establish the speaker's identity as the husband, and the process server's failure to ask the person's name or ascertain his identity before serving him violated the statutory requirement for lawful service.
[1] A return of service is presumptively correct, but its validity may be challenged by clear and convincing evidence.
[2] Service of process requires delivering a copy of the pleading to the person to be served or leaving it at their usual place of abode with a resident of suitable age and i…
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Join FLexlaw to unlock all legal intelligence“Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents”
States the statutory requirement for valid service of process under Florida law
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Join FLexlaw to unlock all legal intelligenceThe wife filed for dissolution of marriage. A process server attempted to serve the husband at his condominium by knocking on the door and asking "Mr.…
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BASKIN, Judge.
In this interlocutory appeal from an “Order on Pending Motions” entered by the trial court in dissolution of marriage proceedings,1 the husband asserts that the orders entered by the trial court are invalid because he was never served with process. Holding that the trial court erred in finding the evidence insufficient to overcome the presumption of valid service, we reverse.
Following the wife’s institution of proceedings to dissolve the parties’ marriage,2 the matter was referred to a general master. The process server attempted to serve the husband with process, the amended complaint, and a notice of a hearing to be held before the general master. He went to the husband’s condominium, knocked on the door, and inquired of the person answering: “Mr. Julio Montano?” The man replied, “Si.” Although the process server ascertained that the individual who answered the door did not speak English, he left the papers with him. The process server spoke very little Spanish, but in Spanish he told the person with whom he left the papers that they were very important and then read him the titles of the papers in English.
The husband maintains that he was never served and that the man who answered the door was a Guatemalan friend who spoke no English and was staying in the husband’s condominium for approximately a week. The husband filed an affidavit to that effect, and his guest, Fernando Porras Mange, testified in a written deposition in support of the husband’s statements. The trial court ruled the evidence insufficient to rebut the presumption of valid service. On appeal, the husband argues that the wife’s failure to serve him with process precluded the trial court from exercising jurisdiction over his person. Accordingly, he challenges all the trial court’s rulings.
Section 48.031(1), Florida Statutes (1983), provides:
Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents, (emphasis supplied)
Although a return of service is presumptively correct, the invalidity of service may be established by clear and convincing evidence. King v. Insurance Co. of North America, 426 So. 2d 1302, 1303 (Fla. 2d DCA 1983); Winky’s, Inc. v. Francis, 229 So. 2d 903, 906 (Fla. 3d DCA 1969).
The evidence presented to the trial court, consisting of appellant Montano’s affidavit and Mr. Mange’s deposition, confirmed the husband’s contention that he was not served in accordance with the provisions of section 48.031(1). The only evidence in support of the process server’s opinion that appellant had answered the door was the response “Si” to the words “Mr. Julio Montano?” However, the server did not ascertain the man’s identity by asking, “What is your name?” or a similar question. It is reasonable to conclude that the response meant only that Mr. Julio Montano resided at the residence, and not that the speaker was Mr. Montano. We therefore hold that the evidence presented to the trial court was clear and convincing and rebutted the presumption of valid service. See King. Finding that the record fails to reflect a waiver of the question of the court’s in personam jurisdiction over the husband and that the husband was not lawfully served with process, we reverse the trial court's order. Reversed and remanded.
. Still pending before this court is a separate appeal (# 84-2542) pertaining to subject matter jurisdiction of the cause.
. The husband filed an action for divorce in Guatemala, which was granted on May 8, 1985.
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Citator
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Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985)…ervice arises from evidence of a return of service which is regular on its face. Klosenski v. Flaherty, 116 So. 2d 767 (Fla.1959). The party challenging the service must overcome that presumption by clear and convincing evidence. Montano v. Montano, 472 So. 2d 1377 (Fla. 3d DCA 1985); Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983). We find that Magazine has failed to meet that burden in this case. First, Ms. Oakford’s six-week stay at Magazine’s residence was long enough that she may properly be rega…
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Morgan Stanley Smith Barney, LLC v. Gibraltar Private Bank & Tr. Co., 162 So. 3d 1058 (Fla. 3d DCA 2015)…Bornstein, 39 So. 3d 500, 503 (Fla. 4th DCA 2010); see also Klosenski v. Flaherty, 116 So. 2d 767 (Fla.1959) (holding that a presumption of valid service arises from evidence of a return of service which is regular on its face); Montano v. Montano, 472 So. 2d 1377, 1378 (Fla. 3d DCA 1985). Morgan Stanley had to demonstrate the invalidity of the service of process by clear and convincing evidence before the motion to quash could be granted. See Travelers Ins. Co. v. Davis, 371 So. 2d 702, 703 (Fla. 3d DCA 1979…
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Montano v. Montano, 474 So. 2d 345 (Fla. 3d DCA 1985)…PER CURIAM. In a companion case, this court found that the petitioner had not been properly served, see Montano v. Montano, 472 So. 2d 1377 (Fla. 3d DCA 1985). We accordingly dismiss the petition for certiorari which involves subject matter jurisdiction, see Sabio v. Russell, 472 So. 2d 869 (Fla. 3d DCA 1985). Certiorari dismissed.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winky's, Inc. v. Ivy M. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)
- King v. Ins. Co. OF N. Am. & D.L. Small Corp., 426 So. 2d 1302 (Fla. 2d DCA 1983)