MICHAEL PAUL SHIENVOLD, AS GUARDIAN/ATTORNEY AD LITEM FOR DANIEL HABIE AND ALEXANDRA HABIE, APPELLANT,
v.
AMY HABIE AND JOSEPH HABIE, APPELLEES
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A guardian ad litem for children in a dissolution action appealed the dismissal with prejudice of a motion to set aside the final judgment and settlement agreement. The court held that a guardian ad litem has standing to seek such relief in limited circumstances, but reversed the dismissal with prejudice because the allegations of fraud and coercion were insufficiently pleaded, allowing the opportunity to amend.
A guardian ad litem appointed to represent the best interests of children in dissolution actions has standing to seek to set aside a final judgment in limited circumstances. However, the petition failed to sufficiently allege the only viable grounds for relief—fraud and coercion—and therefore was properly dismissed for failure to state a cause of action, but the dismissal should not have been with prejudice.
[1] A guardian ad litem for children in a dissolution action has standing to move to set aside the final judgment and incorporated settlement agreement in limited circumstanc…
[2] A guardian ad litem appointed to represent the best interests of a child in a dissolution action has the power to file pleadings, motions, or petitions for relief deemed…
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Join FLexlaw to unlock all legal intelligence“guardians ad litem appointed to represent the best interests of children in dissolution actions "shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interest of the child...."”
Establishes the broad authority of guardians ad litem under Florida Statute 61.403
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Join FLexlaw to unlock all legal intelligenceA guardian ad litem was appointed to represent the best interests of children in a dissolution action. The guardian filed a motion seeking to set asid…
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PER CURIAM.
This is an appeal from an order granting a motion to dismiss with prejudice. We reverse. The first issue on appeal is whether a guardian ad litem for children of the dissolved marriage has standing to move to set aside a final judgment of dissolution and incorporated settlement agreement. We hold that a guardian ad litem does have such standing in the limited circumstances presented by the facts of this case.
Section 61.403, Florida Statutes (1991), provides that guardians ad litem appointed to represent the best interests of children in dissolution actions “shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interest of the child....” While the powers specifically enumerated in the statute do not include the authority to seek to have the parents’ final judgment of dissolution set aside, they do include filing “such pleadings, motions or petitions for relief as the guardian ad litem deems appropriate or necessary_” § 61.-403(6), Fla.Stat. (1991).
Section 415.503(8) (defining the term guardian ad litem in child abuse or neglect proceedings) provides:
‘Guardian ad litem’ as referred to in any civil or criminal proceeding includes the following: ... other court-appointed attorney ... who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, including, but not' limited to, chapter 39 and this chapter , who shall he a party to any judicial proceeding as a representative of the child....
(Emphasis added.)
The motion filed by the guardian ad litem sought declaratory relief and relief pursuant to rule 1.540, Florida Rules of Civil Procedure. Dismissal of that motion was based upon lack of standing (erroneously) and for failure to allege ultimate facts sufficient to state a cause of action under rule 1.540(b).
The Guardian offered three reasons to support his contention that the final judgment should be set aside. The first, that the conflicts of interest between the parents prevented them from considering the best interests of their children, is simply not a ground for relief under rule 1.540(b). The appellant also argued that as a result of the conflicts between the parties, the father was suffering from coercion caused by economic factors and physical separation from his children at the time that he entered into the settlement agreement. However, in order for duress or coercion to justify the setting aside of a judgment, there must be some evidence of threat, fraud or misconduct. Paris v. Paris, 412 So. 2d 952, 953 (Fla. 1st DCA 1982). There were no such allegations here.
The second ground, that the children were indispensable parties to the dissolution action, is without merit.
Finally, the appellant argues that the parents misrepresented and fraudulently concealed material facts from the trial court at the time that the settlement agreement was approved and incorporated into the final judgment. Of course, fraud is a reason for setting aside a final judgment. Fla.R.Civ.P. 1.540(b)(3). However, the petition does not specifically set forth the alleged false statements or concealed information. Mere con-elusory allegations, such as the ones contained in the appellant’s petition are insufficient to state a basis for relief. In re Will of Aston, 262 So. 2d 246, 248 (Fla. 4th DCA 1972).
Because the appellant did not sufficiently plead the two grounds that could have formed a basis for rule 1.540(b) relief — fraud and coercion — the trial court correctly dismissed the petition for failure to state a cause of action.
The dismissal should not have been with prejudice, however. Where the allegations of the original petition are too sketchy to state a basis for relief, the movant should be permitted to file a more detailed amended petition. Aston, 262 So. 2d at 248-49.
The guardian ad litem or a successor guardian ad litem shall be given the opportunity to amend upon remand.
REVERSED AND REMANDED.
HERSEY, GUNTHER and KLEIN, JJ., concur.
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Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)…e Sav. and Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); Reina v. Gingerale Corp., 472 So. 2d 530, 531-32 (Fla. 3d DCA 1985). To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud. Shienvold v. Habie, 627 So. 2d 1203, 1205 (Fla. 4th DCA 1993). Cf. Southern Bell Tel. and Tel. Co. v. Welden, 483 So. 2d 487 (Fla. 1st DCA 1986). In addition to specifying the fraud, the motion should explain why the fraud, if it exists, would entitle the movant to have the judgment s…
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Nathanson v. Nathanson, 693 So. 2d 1061 (Fla. 4th DCA 1997)…Rule of Judicial Administration 2.160(h) and consistent with this opinion. KLEIN, J., concurs. STONE, J., concurs specially with opinion. . The husband has now withdrawn his objection to the dismissal. . Under our decision in Shienvold v. Habie, 627 So. 2d 1203 (Fla. 4th DCA 1993), even the guardian could move to vacate the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b), provided the proper grounds are alleged. That decision considered an earlier version of the law under which a g…
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Townsend v. Lane, 659 So. 2d 720 (Fla. 5th DCA 1995)…36 So. 2d 579 (Fla. 4th DCA 1994) (To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside); Shienvold v. Habie, 627 So. 2d 1203, 1205 (Fla. 4th DCA 1993) (“Because appellant did not specifically plead the two grounds that would have formed a basis for relief — fraud and coercion — the trial court correctly dismissed the petition for failure to state a cause of action.”), rev…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Paris v. Paris, 412 So. 2d 952 (Fla. 1st DCA 1982)
- In re Tr. under the Will of Fred A. Aston, 262 So. 2d 246 (Fla. 4th DCA 1972)