DARLENE LOIS MICELI, APPELLANT,
v.
MICHAEL J. MICELI, APPELLEE
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Darlene Miceli appealed the trial court's denial of her motion for relief from a default judgment in a dissolution of marriage case. The court reversed, finding that the amended petition asserting new claims was not properly served on the wife and that the trial court lacked jurisdiction to enter final judgment.
The trial court erred in denying the motion for relief from judgment. An amended petition asserting new claims after default must be served in the manner provided for service of a summons; improper service deprives the court of jurisdiction. Additionally, because the wife was not in default on the day judgment was entered, the judgment should have been set aside.
[1] A court lacks jurisdiction to enter a final judgment on an amended petition when the amended petition asserts new and additional claims and was not properly served on the…
[2] A defendant is not in default for failing to answer an amended petition when the final judgment was entered prior to the expiration of the time allowed for the defendant…
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Join FLexlaw to unlock all legal intelligence“the amended petition should have been served upon the wife in the manner provided for service of a summons because the petition was amended after entry of a default and the amended petition asserted new and additional claims”
Establishes the rule that amended petitions with new claims require proper service like original summonses
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Join FLexlaw to unlock all legal intelligenceMichael Miceli filed a petition for dissolution of marriage against his wife Darlene, who was residing in Illinois. The trial court denied Darlene's m…
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[*1236] SCHOONOVER, Judge.
The appellant, Darlene Miceli, seeks review of the trial court’s denial of her motion for relief from judgment. We find that the court erred in denying the motion and, accordingly, reverse.
Appellee, Michael J. Miceli, initiated proceedings in the trial court by filing a petition for dissolution of marriage. The petition and summons were served upon the wife in Illinois, her state of residency. The wife filed a motion to dismiss for lack of personal jurisdiction, which the trial court denied and we affirmed on appeal. Miceli v. Miceli, 464 So. 2d 562 (Fla. 2d DCA 1985).
The husband subsequently moved for a default because the wife failed to answer the petition within the time allowed by the court. After the default was granted, the husband moved to amend his original petition for dissolution to add a prayer for relief seeking, among other things, an adjudication of property, support, and alimony rights, and a determination of the responsibility for the parties’ debts. The original petition had sought a dissolution of marriage only. The husband’s motion to amend was granted, and an order entered thereon was mailed to the wife and her attorneys by the husband’s attorney. Two days later, the husband filed a motion for default. The husband presented evidence to the court and, prior to the time in which the wife was required to answer the amended petition, obtained a final judgment granting the relief sought in his amended petition. The wife filed a motion seeking relief from the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). Her motion was denied, and this appeal timely followed.
We find that the trial court should have granted the wife’s motion. First, the amended petition should have been served upon the wife in the manner provided for service of a summons because the petition was amended after entry of a default and the amended petition asserted new and additional claims. Fla.R.Civ.P. 1.080(a); Colburn v. Highland Realty Co., 153 So. 2d 731 (Fla. 2d DCA 1963), reversed on other grounds, 177 So. 2d 193 (Fla.1965). As the amended petition was not properly served, the court had no jurisdiction to enter a final judgment on the amended petition. See Valdosta Milling Co. v. Garretson, 54 So. 2d 196 (Fla.1951); Milton Land & Investment Co. v. Our Home Life Insurance Co., 81 Fla. 227, 87 So. 636 (1921). Second, because the wife was not in default on the day the husband obtained a final judgment, the court also erred in refusing to set the judgment aside. Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984); Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980).
We, accordingly, reverse and remand for proceedings consistent herewith.
Reversed and remanded.
FRANK and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Miceli v. Miceli, 533 So. 2d 1171 (Fla. 2d DCA 1988)
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Kitchens v. Nationstar Mortg., LLC, 189 So. 3d 355 (Fla. 4th DCA 2016)…onsidered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action.”); see also Valdosta Milling Co. v. Garretson, 54 So. 2d 196, 197 (Fla.1951); Miceli v. Miceli, 489 So. 2d 1235, 1236 (Fla. 2d DCA 1986). Florida Rule of Judicial Administration 2.516 explains when sendee is required: [Ejvery pleading subsequent to the initial pleading ... must be served in accordance with this rule on each party. No service need be made on…
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Scheb v. Shalam Imports, Inc., 656 So. 2d 956 (Fla. 2d DCA 1995)…equire service of process after the entry of the clerk’s default because no new cause of action was raised against Shalam in the amended complaint. See Winfield v. First New Haven Nat’l Bank, 392 So. 2d 957 (Fla. 4th DCA 1980); cf. Miceli v. Miceli, 489 So. 2d 1235, 1236 (Fla. 2d DCA 1986) (petition amended after entry of default “asserting] new and additional claims” should have been served in the manner provided for service of summons) (emphasis added). Accordingly, the trial court had jurisdiction to enter…
Authorities Cited
- The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)
- Valdosta Milling Co. v. Garretson, 54 So. 2d 196 (Fla. 1951)
- Milton Land & Inv. Co. v. Our Home Life Ins. Co., 81 Fla. 227 (Fla. 1921)
- Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984)
- Sherwood Colburn v. Highland Realty Co., Inc., 153 So. 2d 731 (Fla. 2d DCA 1963)
- Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980)