ANTONIO PINERO, APPELLANT,
v.
LEILANY PINERO, APPELLEE
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In a consolidated appeal from a dissolution of marriage action, the Florida District Court of Appeal affirmed the striking of the husband's pleadings and entry of default for failure to comply with discovery orders, but reversed and remanded the final judgment because the trial court lacked jurisdiction to proceed to final hearing while an appeal from the interlocutory order was pending.
The trial court properly struck the husband's pleadings and entered default based on competent and substantial evidence of willful disregard for discovery orders. However, once an appeal was duly taken from the interlocutory order, jurisdiction transferred to the appellate court, depriving the trial court of power to take dispositive action on the cause while the appeal was pending. The award of child support on an amended complaint after default constituted denial of due process. The award of $10,360 was not supported by the itemization, which totaled only $5,560.
[1] A trial court loses jurisdiction to proceed with a case once an appeal has been duly taken, thereby preventing any action that would interfere with the appellate court's…
[2] A trial court abuses its discretion by striking a party's pleadings and entering a default judgment for repeated failure to comply with discovery orders when competent an…
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Join FLexlaw to unlock all legal intelligence“Where an appeal is duly taken, whether or without supersedeas, jurisdiction of the cause is transferred to the appellate court, thereby depriving the trial court of the power to finally dispose of the cause or to take any action which interferes with the appellate court's exercise of jurisdiction.”
Establishes that the trial court lacked jurisdiction to proceed with final disposition while the appeal was pending
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Join FLexlaw to unlock all legal intelligenceAntonio Pinero failed to comply with the trial court's discovery orders in a dissolution of marriage action. The trial court struck his pleadings and …
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PER CURIAM.
These are consolidated appeals from an interlocutory order and a final judgment entered in a dissolution of marriage action. We affirm the order in case no. 86-464 striking the husband's pleadings and entering a default against him for repeated failure to comply with the court’s orders on discovery motions. The evidence of willful disregard for the discovery orders is competent and substantial. See Mercer v. Raine, 443 So. 2d 944 (Fla.1983).
In case no. 86-676 the husband asserts as points on appeal that (1) the trial court should not have proceeded to a final hearing while the appeal from the interlocutory order was pending before this court, (2) the trial court should not have awarded child support where there were no allegations or prayer for relief related to child support in the served complaint, (3) the evidence does not support an award of $10,360 which the wife claims is owed her for loans and expenses, and (4) he should have been awarded shared custody of the minor child.
It is clear from the scant record that at least three of the husband’s points have substantive or procedural merit.
Where an appeal is duly taken, whether with or without supersedeas, jurisdiction of the cause is transferred to the appellate court, thereby depriving the trial court of the power to finally dispose of the cause or to take any action which interferes with the appellate court’s exercise of jurisdiction. See De La Portilla v. De La Portilla, 304 So. 2d 116 (Fla.1974).
Allowing the wife to proceed on an amended complaint seeking new relief after entry of a default on the original complaint constituted a denial of due process. We need not examine the issue separately in light of the determination that no dispos-itive action should have been taken while the appeal from the default judgment was pending in the appellate court.
The wife’s proof in support of a claim of amounts owed her is not substantial. Particularly, the total of $10,360 is not supported by the itemization. The husband correctly points out that the total of the itemized expenses is only $5,560. At a new hearing, the husband will be permitted to challenge the amount of the claim.
Reversed and remanded for a new trial on the issues of child support, reimbursement for expenses, and custody.
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Citator
Cited By
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Dunn v. Letch White, 555 So. 2d 1317 (Fla. 5th DCA 1990)…1274 (Fla.1987); Zafirakopoulous v. South Miami International Crab House Corp., 513 So. 2d 1353 (Fla. 3d DCA 1987); Arviv v. Perlow, 528 So. 2d 139 (Fla. 4th DCA 1988); Bernaad v. Hintz, 530 So. 2d 1055 (Fla. 4th DCA 1988); but see Pinero v. Pinero, 498 So. 2d 637 (Fla. 3d DCA 1986); Freeman v. Humana, Inc., 501 So. 2d 639 (Fla. 3d DCA 1986), rev. denied, 511 So. 2d 298 (Fla.1987). The extreme penalty should be used only in extreme circumstances; this obviously was not such a case. REVERSED and REMANDED for…
Authorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- DE LA Portilla v. DE LA Portilla, 304 So. 2d 116 (Fla. 1974)