JERRY L. REGANTE, APPELLANT,
v.
LOIS A. BELSKY, A/K/A LOIS A. REGANTE, APPELLEE
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A husband appealed a final judgment in a divorce case that was based partly on a default judgment entered as a sanction for his failure to pay temporary support and attorney's fee arrearages. The appellate court reversed and remanded, finding the default judgment unauthorized and the equitable distribution lacking adequate findings of fact.
The court held that the default judgment was unauthorized as a sanction because the failure was not related to discovery compliance or failure to plead or defend, and that even if it were for discovery violations, it required written findings of willful or equivalent conduct. Additionally, the equitable distribution was not supported by findings, precluding adequate appellate review.
[1] A default judgment is not an authorized sanction for a party's failure to comply with orders requiring payment of temporary support and attorney's fee arrearages.
[2] A default judgment is not an authorized sanction for a party's failure to comply with discovery orders unless the court makes written findings that the failure was willfu…
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Join FLexlaw to unlock all legal intelligence“the default judgment was unauthorized as a sanction for the failure of the husband referred to above. Florida Rule of Civil Procedure 1.380(b)(2)(C) authorizes a judgment by default as a sanction for the failure of a party to comply with a court order to provide or permit discovery”
Establishes that default as sanction is limited to discovery violations, not payment failures
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Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage proceeding, the trial court entered a default judgment against the husband as a sanction, apparently for his failure to c…
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LEHAN, Judge.
This is an appeal by a husband from a final judgment in a dissolution of marriage case. The final judgment is based at least in part upon a judgment of default which had been entered as a sanction against the husband apparently for his fail ure to comply with an order requiring him to pay temporary support and attorney’s fee arrearages. Finding the final judgment in error for several reasons, we reverse and remand for a trial of all issues except that raised by the contention of the husband that there had been no valid marriage. Without a transcript of the proceedings below supporting that contention, we must affirm the trial court’s prior ruling that “there is in fact a valid marriage between the two parties to this action.” See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979). Our reasons for finding the final judgment in error are outlined below.
First, the default judgment was unauthorized as a sanction for the failure of the husband referred to above. Florida Rule of Civil Procedure 1.380(b)(2)(C) authorizes a judgment by default as a sanction for the failure of a party to comply with a court order to provide or permit discovery, and the wife argues that the husband failed to comply with orders of the trial court in that regard. However, the basis of the motion for default judgment, and thus the above referenced apparent basis of the trial court’s grant thereof, was not a failure of the husband to comply with orders relating to discovery. Nor was that basis a failure to plead or otherwise defend. See 33 Fla.Jur.2d Judgments and Decrees § 270 (1982).
Second, even if the default judgment was for failure to comply with discovery orders, such a sanction is unauthorized without written findings that the failure was willful or at least equivalent to willfulness and a deliberate disregard of such orders. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla.1990). No such findings were made.
Third, the equitable distribution ordered in the final judgment is not supported by findings. In this case the absence of such findings precludes adequate appellate review. See Haas v. Haas, 552 So. 2d 221 (Fla. 2d DCA 1989). See also O’Leesky v. Liggett, 582 So. 2d 43 (Fla. 2d DCA 1991).
During further proceedings after remand nothing in this opinion shall prevent the trial court’s consideration of the husband’s prior apparent recalcitrance in this case should the occasion arise for a determination of whether any future such recalcitrance constitutes grounds for sanctions.
Reversed and remanded for proceedings consistent herewith.
CAMPBELL, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Regante v. Regante, 652 So. 2d 1163 (Fla. 2d DCA 1995)…e appellee [husband] brought that final order to us and we reversed the final judgment of dissolution in all respects and remanded for trial of all issues except the issue of whether there had been a valid marriage of the parties. Regante v. Belsky, 600 So. 2d 13 (Fla. 2d DCA1992) [Regante I ]. On remand it became an issue whether the final judgment dissolving the marriage survived the decision of this court in Regante I. The trial court entered a partial summary judgment finding that the previous default ju…
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Harper-Elder v. Elder, 701 So. 2d 1230 (Fla. 4th DCA 1997)…. See Global Recreation, 585 So. 2d at 456. Assuming that the trial court properly struck the pleadings and entered a default, wife’s remaining points on appeal attacking the final judgment of dissolution lack merit. Cf. Re- [*1232] gante v. Belsky, 600 So. 2d 13 (Fla. 2d DCA 1992). STEVENSON, J., and MARRA, KENNETH A;, Associate Judge, concur.…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Commonwealth Fed. Sav. & Loan Ass'n v. Moshe Tubero, 569 So. 2d 1271 (Fla. 1990)
- Haas v. Haas, 552 So. 2d 221 (Fla. 2d DCA 1989)
- O'Leesky v. Liggett, 582 So. 2d 43 (Fla. 2d DCA 1991)