MARY STARKS AND THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLANTS,
v.
MARCINE HOWARD, JR., APPELLEE
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Mary Starks appealed the dismissal of her paternity and child support action against Marcine Howard, Jr. The court reversed, holding that Howard waived his service of process defenses by appearing in court and admitting paternity, and remanded for proceedings on child support and arrearages.
Howard waived his service of process and jurisdictional defects by submitting to the court's jurisdiction through his appearance and admission of paternity in October 1990, and therefore the motion to dismiss for lack of personal jurisdiction should have been denied.
[1] A party submits to the jurisdiction of the court and waives jurisdictional defects by taking a step in the proceeding amounting to an appearance.
[2] Admitting paternity in open court constitutes an appearance that waives defects in service of process and personal jurisdiction.
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Join FLexlaw to unlock all legal intelligence“A party submits to the jurisdiction of the court and waives jurisdictional defects by taking a step in the proceeding amounting to an appearance.”
Establishes the legal standard for waiver of jurisdictional defenses through appearance
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Join FLexlaw to unlock all legal intelligenceStarks filed a paternity and child support petition against Howard in 1987. Service was attempted at Howard's father's residence, where Howard did not…
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PER CURIAM.
Mary Starks appeals an order granting a motion to dismiss her petition to determine paternity and award child support. For the following reasons, we reverse.
Starks filed a petition against Marcine Howard, Jr., Respondent, in 1987 to determine paternity and to seek child support. The summons and the complaint were served at the residence of the Respondent’s father, Marcine Howard, Sr. The Respondent did not live with his father. He did not appear at the hearing, and the court entered a final judgment of paternity with child support. The Respondent was served again at his father’s residence after Starks filed a motion to hold the Respondent in contempt for failure to pay child support. The Respondent failed to appear at the hearing, and the court issued a writ of bodily attachment in January 1988.
In October 1990, the Respondent appeared pro se before the court for a surrender on the writ. He admitted paternity and explained to the court that he never received service. The court quashed the writ, ordered the Respondent to pay temporary child support, and continued the case to resolve issues of permanent child support and arrearages. At a subsequent hearing, the Respondent’s father testified that he received the summons and complaint. The court upheld the temporary child support and continued the pending issues. The Respondent then filed a motion to abate the proceedings claiming lack of jurisdiction based on insufficiency of service of process. The court found that the Respondent admitted paternity in open court, upheld the temporary child support, and set aside the final judgment of paternity for insufficiency of process. In addition, the court referred the issues of permanent child support and arrearages to a general master. The Respondent filed a motion to dismiss for lack of personal jurisdiction on the basis that pursuant to Fla.R.Civ.P. 1.070(j) the time limits for service of process had expired. The general master remitted the case to trial court for a hearing on the motion. The court granted the motion. Starks now appeals.
A party submits to the jurisdiction of the court and waives jurisdictional defects by taking a step in the proceeding amounting to an appearance. Martin v. Ullman, 555 So. 2d 1232 (Fla. 3d DCA 1989) (party’s active participation in the proceeding, giving testimonial evidence, constituted a general appearance, and thus the party waived defects in service or in jurisdiction), rev. denied, 564 So. 2d 487 (Fla.1990); McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976) (the filing of a motion for protective order which had the effect of a motion to dismiss constituted an appearance submitting the party to the jurisdic tion of the court). The Respondent submitted to the jurisdiction of the court when he admitted paternity at the October 1990 hearing. See Hall v. Department of Health & Rehab. Serv., 487 So. 2d 1147 (Fla. 1st DCA 1986) (party submitted to the court’s jurisdiction by participating in the proceeding through a stipulation agreeing to a final judgment of paternity if blood tests indicated a high probability of paternity). Therefore, the Respondent waived his service of process and jurisdictional arguments.
Reversed and remanded for a final hearing on permanent child support and arrear-ages.
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Johnson v. State, 973 So. 2d 1236 (Fla. 1st DCA 2008)…f process in a timely and consistent manner. A party may forfeit the right to seek relief even from a void judgment if the party’s actions or statements have had the effect of ratifying the judgment or conceding its propriety. See Starks v. Howard, 611 So. 2d 52, 53-54 (Fla. 3d DCA 1992) (holding party alleging he never received notice of paternity action waived right to challenge final judgment of paternity on grounds of insufficiency of process by admitting paternity in subsequent proceedings). See also M…
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MacDOUGALL v. Kutina, 798 So. 2d 30 (Fla. 4th DCA 2001)…d a motion for relief from the judgment based on the issue regarding service of process. Hence there was a basis in the record for the trial judge’s finding of a waiver of the service of process issue. The court properly relied on Starks v. Howard, 611 So. 2d 52, 53 (Fla. 3d DCA 1992), in finding a waiver. In Starks, the mother filed a petition to determine paternity and for child support. The summons and complaint were serviced at the father’s former residence, and consequently the father did not appear at…
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Whittingham v. HSBC Bank USA, NA, 275 So. 3d 850 (Fla. 5th DCA 2019)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McKELVEY v. McKELVEY, 323 So. 2d 651 (Fla. 3d DCA 1976)
- Filiherto Raul Martin, R.N. v. Ullman, 555 So. 2d 1232 (Fla. 3d DCA 1989)
- Hall v. State, 487 So. 2d 1147 (Fla. 1st DCA 1986)