ANTONIO ST. SURIN, APPELLANT,
v.
MARIE C. ST. SURIN, APPELLEE
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A husband appeals the trial court's denial of his motion for relief from a default final judgment in a dissolution of marriage action, where the wife obtained a judgment for alimony, child support, and equitable distribution. The court reversed and remanded, holding that the husband was entitled to an evidentiary hearing on his fraud allegations against the wife.
The trial court correctly denied the motion based on excusable neglect, as failure to understand legal consequences does not constitute excusable neglect. However, the husband was entitled to an evidentiary hearing on his fraud allegations because he pleaded fraud with particularity and explained how it affected the judgment, and he filed the motion within one year as required by the rule.
[1] A party seeking relief from a default judgment based on excusable neglect must demonstrate more than a mere misunderstanding of the legal consequences of court proceeding…
[2] A motion for relief from judgment based on fraud or misrepresentation must be filed within one year of the judgment.
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Join FLexlaw to unlock all legal intelligence“The failure to understand the legal consequences of the proceedings does not constitute excusable neglect.”
Establishes that the husband's claim of excusable neglect was properly rejected by the trial court.
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Join FLexlaw to unlock all legal intelligenceThe wife filed a petition for dissolution on February 1, 1995, and a default was entered on April 11, 1995 when the husband failed to respond. Althoug…
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PATTERSON, Acting Chief Judge.
Antonio St. Surin (the husband) appeals from an order denying his motion for relief from default final judgment in this dissolution of marriage action. We reverse and remand for an evidentiary hearing.
Marie St. Surin (the wife) filed a petition for dissolution of marriage on February 1, 1995. The husband did not respond, and the clerk entered a default on April 11, 1995. The husband received a notice of hearing, but he did not file a financial affidavit or appear at the final hearing. The trial court entered a final judgment on June 30, 1995, dissolving the marriage and a supplemental final judgment on August 28, 1995, ordering child support, alimony, and equitable distribution.
On October 4, 1995, the husband obtained counsel, and on November 1, 1995, counsel filed a motion for relief from default judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The motion and the husband’s affidavit alleged (1) excusable neglect because the husband did not understand the notice of hearing was for the final hearing, and (2) fraud or misrepresentation by the wife regarding the parties’ finances. The trial court denied the husband’s motion for relief from judgment without an evidentiary hearing.
We first note that the trial court correctly denied the motion based on the husband’s claim of excusable neglect under Florida Rule of Civil Procedure 1.540(b)(1). The failure to understand the legal consequences of the proceedings does not constitute excusable neglect. See Goldome v. Davis, 567 So. 2d 909 (Fla. 2d DCA 1990).
As to the allegations of fraud and misrepresentation, the husband filed his motion under rule 1.540(b)(3) within one year of the supplemental final judgment, as the rule requires. If a party pleads fraud or misrepresentation with particularity and how it affected the judgment, the party is entitled to an evidentiary hearing on the motion. See Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994); Kidder v. Hess, 481' So. 2d 984 (Fla. 5th DCA 1986). Here, the husband alleged that the wife misrepresen ted the proceeds she received from the sale of the marital residence and the value of the husband’s business. He also alleged -with specificity how the misrepresentations affected the supplemental final judgment in the areas of alimony, child support, and equitable distribution.
Based on these allegations, the husband was entitled to an evidentiary hearing on his motion for relief from final default judgment. Thus, we reverse the trial court’s order and remand for an evidentiary hearing.
Reversed and remanded.
WHATLEY, J., and PADGETT, J. ROGERS, Associate Judge, concur.
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Chancey v. Chancey, 880 So. 2d 1281 (Fla. 2d DCA 2004)…raise the possibility that he did file a response to his wife’s petition and should not have been defaulted, or that his wife committed fraud on the court by falsely stating that the parties had no assets or liabilities. See St. Surin v. St. Surin, 684 So. 2d 243, 244 (Fla. 2d DCA 1996). If a rule 1.540 motion alleges a colorable entitlement to relief, the circuit court should conduct a limited evidentiary hearing on the motion. See In re Schiavo, 800 So. 2d 640, 641 (Fla. 2d DCA 2001). Therefore, we revers…
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Robinson v. Weiland, 936 So. 2d 777 (Fla. 5th DCA 2006)…raud or misrepresentation affected the judgment, the trial court is required to conduct an evidentiary hearing to determine whether the motion should be granted.7 See Seal v. Brown, 801 So. 2d 993, 994-95 (Fla. 1st DCA 2001); St. Surin v. St. Surin, 684 So. 2d 243, 244 (Fla. 2d DCA [*782] 1996); Estate of Willis v. Gaffney, 677 So. 2d 949 (Fla. 2d DCA 1996); Dynasty Exp. Corp. v. Weiss, 675 So. 2d 235, 239 (Fla. 4th DCA 1996); Townsend v. Lane, 659 So. 2d 720 (Fla. 5th DCA 1995); S. Bell Tel. & Tel. Co. v. We…
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Zivitz v. Zivitz, 16 So. 3d 841 (Fla. 2d DCA 2009)…rom judgment — which relied on the same records and affidavits previously filed — did not provide a sufficient explanation for why he had failed to take timely action to respond to the garnishment action. We agree. See, e.g., St. Surin v. St. Surin, 684 So. 2d 243, 244 (Fla. 2d DCA 1996) (holding that husband’s affidavit alleging that he did not understand notice of hearing did not establish excusable neglect warranting relief from judgment because “failure to understand the legal consequences of the proceedi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)
- Goldome v. Davis, 567 So. 2d 909 (Fla. 2d DCA 1990)