JAMES L. COLLINS, APPELLANT,
v.
CAROLYN L. COLLINS, APPELLEE
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The trial court properly denied the husband's motion to set aside a default judgment of dissolution of marriage because he failed to submit affidavits or sworn statements establishing excusable neglect and a meritorious defense.
A motion to vacate a default judgment must be supported by affidavits or sworn statements establishing both excusable neglect and a meritorious defense; an unsworn motion alone is insufficient.
[1] A motion to vacate a default judgment must be supported by affidavits or sworn statements establishing excusable neglect and a meritorious defense; an unsworn motion is i…
Previewing 1 of 1 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“The record here is barren of any of the above instruments. The sole document before the trial court and this court is the appellant's unsworn motion to vacate the default judgment.”
The court explaining why the motion failed to meet procedural requirements for vacating a default.
Appellant husband sought to set aside a default and final judgment of dissolution of marriage. The only document submitted was an unsworn motion to va…
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PARKER, Judge.
Appellant/husband seeks a review of a nonfinal order denying his motion to set aside a default and final judgment of dissolution of marriage.
The sole issue for our determination is whether the trial court erred in refusing to set aside the default final judgment.
We affirm the trial court.
A gross abuse of discretion must be shown before this court may reverse the denial of a motion to vacate a default judgment. Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984). Here, no such abuse has been demonstrated by the appellant. The appellant has the burden to establish both excusable neglect and a meritorious defense. Excusable neglect must be proven by affidavit or other sworn statement, whereas a meritorious defense may be shown by either an unverified pleading or an affidavit. Gibraltar Service Corp. v. Lone & Associates, Inc., 488 So. 2d 582 (Fla. 4th DCA 1986).
The record here is barren of any of the above instruments. The sole document before the trial court and this court is the appellant’s unsworn motion to vacate the default judgment. That motion, by itself, has been deemed insufficient by this court to establish the requirements of a meritorious defense and excusable neglect necessary to vacate a default. Westinghouse Elevator Co. v. DFS Construction Co., 438 So. 2d 125 (Fla. 2d DCA 1983); Abray Construction Co., Inc. v. Star Swimming Pools, Inc., 426 So. 2d 1046 (Fla. 2d DCA 1983).
Based upon our holding, it is not necessary to decide the merits of appellant’s defenses which were asserted in the motion to vacate.
Affirmed.
SCHEB, A.C.J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Geer v. David Neal Jacobsen, Brian James Almengual, & Almengual & Warner, P.A., 880 So. 2d 717 (Fla. 2d DCA 2004)…s defense. “Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998) (citations omitted); see also Collins v. Collins, 519 So. 2d 729, 730 (Fla. 2d DCA 1988). Almengual’s unsworn motion to set aside or vacate default stated that Almengual intended to defend the lawsuit, and “[n]o neglect was meant by failing to file an answer; rather, the Motion for Enlargement of Time was filed i…
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DiSARRIO v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998)…excusable neglect. Excusable neglect requires a showing of both a legal excuse for failing to comply with the Florida Rules of Civil Procedure and a meritorious defense. See Schauer v. Coleman, 639 So. 2d 637 (Fla. 2d DCA 1994); Collins v. Collins, 519 So. 2d 729 (Fla. 2d DCA 1988). The brief motion filed with the trial court offered no explanation for counsel’s failure to appear aside from conclu-sory allegations of mistake and excusable neglect. At the hearing, counsel blamed his failure to appear at the p…
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Coquina Beach Club Condo. Ass'n, Inc. v. Wagner, 813 So. 2d 1061 (Fla. 2d DCA 2002)…ruction the court noted that a meritorious defense may be disclosed by tendering a defensive pleading showing the defense or by tendering a sworn motion or affidavit stating the facts supporting the defense. Id. at 1047; see also Collins v. Collins, 519 So. 2d 729, 730 (Fla. 2d DCA 1988). The Association’s answer denied the allegations of the complaint, and the Association raised the affirmative defenses of comparative negligence and setoff. The answer and affirmative defenses demonstrated a meritorious defe…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)
- Gibraltar Serv. Corp. v. Lone & Assocs., Inc., 488 So. 2d 582 (Fla. 4th DCA 1986)
- S. Trail Fire Control Dist. & Nationwide Ins. Co. v. Johnson, 449 So. 2d 947 (Fla. 1st DCA 1984)
- Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984)
- Abray Constr. Co., Inc. v. Star Swimming Pools, Inc., 426 So. 2d 1046 (Fla. 2d DCA 1983)