ELEANOR S. GOODWIN, APPELLANT,
v.
CHARLES W. GOODWIN, APPELLEE
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A wife challenged a default judgment in a Florida divorce proceeding, arguing the default should be vacated due to excusable neglect by her counsel and the existence of meritorious defenses. The court reversed, holding that the wife satisfied all three requirements for setting aside a default: due diligence, excusable neglect, and a meritorious defense regarding subject matter jurisdiction.
The court held that the trial court abused its discretion in denying the motion to set aside the default because the wife established all three required elements: (1) due diligence by filing the motion only six days after judgment; (2) excusable neglect supported by her counsel's affidavit regarding illness; and (3) a meritorious defense regarding subject matter jurisdiction based on the husband's failure to establish six-month Florida residency, though the abatement defense was invalid.
[1] A party seeking to set aside a default must establish excusable neglect, a meritorious defense, and demonstrate due diligence.
[2] A motion to vacate a default filed six days after the entry of final judgment establishes due diligence.
Previewing 2 of 5 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“This court has expressed three requirements for setting aside a default. Excusable neglect and a meritorious defense must be established, and due diligence of the party filing such a motion is also a factor which must be considered.”
Establishes the three-part legal standard for vacating a default that the wife must satisfy.
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Join FLexlaw to unlock all legal intelligenceThe wife filed for divorce in Pennsylvania in December 1988. The husband then filed a dissolution petition in Florida in January 1989, properly servin…
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DANAHY, Judge.
The appellant (the wife) challenges an order denying her motion to vacate or set aside a default and a final judgment of dissolution of marriage entered pursuant to the default. We find merit in the wife’s position and reverse.
On December 6, 1988, the wife instituted divorce proceedings in Pennsylvania, where she resides and where she claims the husband also resides. On January 31, 1989, the appellee (the husband) filed a petition for dissolution of marriage in Collier County, Florida. The wife was duly served with respect to the Florida action.
When the wife failed to file a timely answer in the Florida action, a clerk’s default was entered against her on April 6, 1989. Thereafter, the Florida trial court entered a final judgment of dissolution of marriage on April 13, 1989.
Upon learning of the entry of the judgment, the wife filed a motion on April 19, 1989, to vacate or set aside the default and the final judgment entered thereon pursuant to Florida Rule of Civil Procedure 1.540(b), asserting excusable neglect on the part of the wife’s Pennsylvania counsel in failing to file an answer and the existence of meritorious defenses. The allegation of excusable neglect was supported by the affidavit of the wife’s Pennsylvania counsel detailing an illness which prevented counsel from filing a timely answer. The meritorious defenses asserted in the motion were lack of subject matter jurisdiction and abatement due to the pendency of the prior divorce proceedings in Pennsylvania.
This court has expressed three requirements for setting aside a default. Excusable neglect and a meritorious defense must be established, and due diligence of the party filing such a motion is also a factor which must be considered. Canney v. Canney, 453 So. 2d 179 (Fla. 2d DCA 1984); Garcia Insurance Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977). Due diligence in this case is clearly established by the fact that the wife filed her motion only six days after the entry of the final judgment. The wife proved excusable neglect by the affidavit of her Pennsylvania attorney. The facts asserted in that affidavit were not disputed by the husband.
The wife asserts a meritorious defense in that she vigorously contests the husband’s six-month residency in Florida prior to the filing of his petition as required by section 61.021, Florida Statutes (1989). The establishment of residency pursuant to that statute is necessary for the Florida court to have subject matter jurisdiction in a dissolution suit. The standard of proof is “clear and convincing” rather than merely a preponderance of the evidence. Beaucamp v. Beaucamp, 508 So. 2d 419 (Fla. 2d DCA 1987).
The second defense asserted by the wife, the pendency of the Pennsylvania proceedings, is not a valid defense to this Florida action. There is no impediment to a Florida court proceeding in a dissolution action when the petitioner meets the Florida residence requirements, notwithstanding the pendency of prior divorce proceedings in another state. Siegel v. Siegel, 548 So. 2d 266 (Fla. 5th DCA 1989); Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982).
Since the wife established due diligence, excusable neglect, and a meritorious defense, we find that the trial court abused its discretion in denying her motion to set aside the default. We reverse and remand for further proceedings.
Reversed and remanded.
RYDER, A.C.J., and THREADGILL, J., concur.
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Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)…hree things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default. Goodwin v. Goodwin, 559 So. 2d 109, 109 (Fla. 2d DCA 1990). It has long been the law of this state, well understood by practitioners, that “swift action must be taken upon first receiving knowledge of any default.” Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 13…
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Orbe v. Orbe, 651 So. 2d 1295 (Fla. 5th DCA 1995)…hts and obligations of the parties.3 Thus, if Lawrence was a resident of Florida for the required time period, the trial court had subject matter jurisdiction. The standard of proof of residence is clear and convincing evidence. Goodwin v. Goodwin, 559 So. 2d 109, 110 (Fla. 2d DCA 1990); Beaucamp v. Beaucamp, 508 So. 2d 419 (Fla. 2d DCA 1987). Under section 61.052(2), a Florida driver’s license or Florida voter reg [*1298] istration is corroborative evidence of residency- In this case, Lawrence properly cor…
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Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)…y must show three things: (1) that the failure to file a responsive pleading was the result of excusable neglect; (2) that it has a meritorious defense; and (3) that it acted with due diligence in seeking relief from the default. Goodwin v. Goodwin, 559 So. 2d 109 (Fla. 2d DCA 1990). Here, Allstate conceded that Ap-pellees’ answers raised a meritorious defense; however, it argued that Appellees did not demonstrate excusable neglect or show that they acted with due diligence once they learned of the default.…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)
- Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982)
- Canney v. Canney, 453 So. 2d 179 (Fla. 2d DCA 1984)
- Georg Arthur Josef Maria Beaucamp v. Beaucamp, 508 So. 2d 419 (Fla. 2d DCA 1987)
- Siegel v. Siegel, 548 So. 2d 266 (Fla. 5th DCA 1989)