LAURA JEANNE MICHNIAK, APPELLANT,
v.
JOSEPH JOHN MICHNIAK, JR., APPELLEE
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The court held that dismissing a case with prejudice due to a party's unwillful absence from a hearing is an abuse of discretion.
The petitioner failed to appear at her final marriage dissolution hearing due to confusion over court dates. The trial judge dismissed the case with p…
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SALMON, MICHAEL H., Associate Judge.
Appellant Laura Jeanne Michniak petitioned the court for a dissolution of her marriage, and final hearing was set for July 30,1991. After the petitioner failed to appear at the final hearing, the trial judge entered an order dismissing the case with prejudice.1 The petitioner wrote a letter to the trial judge, explaining that she missed her final hearing because she “confused” two court dates, and requested a rehearing. The trial judge, treating the letter as a motion for rehearing, denied the motion. We reverse.
The primary issue is whether the trial court abused its discretion when it dismissed appellant’s petition for dissolution of marriage with prejudice where the petitioner’s stated reason for her absence was not intentional or deliberate, but a confusion over two court dates, and the trial court did not make a finding that appellant willfully failed to appear on the date of the final hearing.
Dismissal with prejudice is a severe sanction, especially where there is no finding of willful failure to appear on the part of the appellant. See Jackson v. Layne, 464 So. 2d 1242 (Fla. 3d DCA1985). It does not appear warranted under these facts, especially where there were other sanctions available, if needed.
Reversed and remanded to the trial court to vacate the order dismissing the cause with prejudice. No petition for rehearing will be entertained in this case.
GLICKSTEIN, C.J., and GUNTHER, J., concur. . The petitioner's attorney was present at the final hearing.
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Citator
Cited By
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Lahti v. Porn, 624 So. 2d 765 (Fla. 4th DCA 1993)…69 So. 2d 836, 837 (Fla. 3d DCA 1990); Epps v. Hartley, 495 So. 2d 921 (Fla. 4th DCA 1986). See also F. Food Company, Inc. v. Hart Properties, Inc., 515 So. 2d 279 (Fla. 3d DCA 1987), rev. denied, 523 So. 2d 577 (Fla.1988). In Michniak v. Michniak, 601 So. 2d 1305, 1306 (Fla. 4th DCA 1992), this court reversed a dismissal with prejudice in a dissolution action because there was no finding of a “willful” failure to appear. However, here, such is not the case, as although the trial court does not use the word w…
Authorities Cited
- Jackson v. Layne, 464 So. 2d 1242 (Fla. 3d DCA 1985)